1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 903 /2009 (Prashant Nemikumar Sarode VERSUS Smt. Shantabai wd/o Hemraj Dhage & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.V. Purohit, counsel for the petitioner. Shri S.P. Kshirsagar, counsel for the R-1 to 4. Shri N.K. Ambilwade, counsel for the R-5 to 8. Shri M.G. Bhangde, Senior Counsel with Shri M. Anilkumar, counsel for the R-9 to 13. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 23, 2009. Heard the learned counsel for the parties. By this petition, the petitioners impugn the order passed by the Joint Civil Judge (Senior Division), Nagpur on 05.02.2009 rejecting the application filed by the petitioners for grant of permission to adduce secondary evidence in relation to the agreement of sale dated 08.05.2005. I have heard the learned counsel for the parties and also perused the application, the reply filed thereto by the respondent nos.9 to 13 and the impugned order dated 05.02.2009. It is submitted on behalf of the petitioners that the petitioners were under the bona fide impression that the original agreement of sale was already on record and at the time of examination of P.W.1 on 02.02.2009, it was noticed 2 that the original agreement of sale was not filed in the Court and, hence, the xerox copy of the agreement dated 08.05.2005 could not be exhibited. It is submitted on behalf of the petitioners that immediately after noticing this fact, the petitioners made a thorough search of the original agreement but, it was not traced as it was lost. It is submitted on behalf of the petitioners that the respondent nos.1 to 8 have, in fact, admitted the existence of the agreement dated 08.05.2005 and a reference to the said agreement also finds place in a public notice dated 15.05.2005. In such circumstances, according to the learned counsel for the petitioners, it was necessary for the trial Court to allow the application filed by the petitioners and permit the petitioners to adduce secondary evidence. Shri S.P. Kshirsagar, the learned counsel for the respondent nos.1 to 4, supported the case of the petitioners and sought for the setting aside of the impugned order dated 05.02.2009. Shri Ambilwade, the learned counsel for the respondent nos.5 to 8, however, opposed the prayer made in the petition and submitted that the impugned order dated 05.02.2009 is just and proper and calls for no interference. 3 Shri M.G. Bhangde, the learned senior counsel for the respondent nos.9 to 13, supported the order dated 05.02.2009 and submitted that the trial Court was justified in rejecting the application filed by the petitioners for permission to adduce secondary evidence as the petitioners had not laid sufficient foundation for seeking permission to lead secondary evidence. The learned senior counsel submitted that the application filed by the petitioners for permission to adduce secondary evidence was extremely vague and no grounds whatsoever were made out from the application for seeking permission to lead secondary evidence. It is submitted on behalf of the respondent nos.9 to 13 that there were two plaintiffs and the said application was filed by two plaintiffs, however, it was not stated as to which of the plaintiffs possessed the original agreement of sale dated 08.05.2005. It is further submitted on behalf of respondent nos.9 to 13 that though both the plaintiffs were businessman, it was not stated whether the original document was either retained in the business premises or in the residential premises of either of the plaintiffs. According to the learned senior counsel, the application is also silent on the aspect as to which of the plaintiffs made attempts to search the 4 original document and what type of attempts were made by the plaintiffs to search the same. In the absence of any data in this regard, it is submitted on behalf of the respondent nos. 9 to 13 that the application was rightly rejected by the trial Court. On considering the submissions made on behalf of the parties and on perusal of the application and the impugned order, it is clear that the trial Court did not commit any error whatsoever in rejecting the application filed by the petitioners, by the impugned order dated 05.02.2009. On a perusal of the application for grant of permission to lead secondary evidence, it is clear that the petitioners had not laid sufficient foundation for seeking the said permission. In fact, it is apparent from the perusal of the contents of paragraph 2 of the application that the petitioners were under the impression that the original agreement of sale was in existence till 02.02.2009 and since it was not traced till 03.02.2009, it was stated in paragraph 2, that it was lost. The relevant words in paragraph 2 read as under. “However, it is revealed yesterday that, the original is not on record. Plaintiffs made thorough search of the original but it is not traced so far. It has been lost.” 5 It is, thus, clear from the aforesaid statements in paragraph 2 of the application that the petitioners had not laid any foundation, much less, a sufficient foundation, for seeking permission to tender secondary evidence in regard to the agreement of sale dated 08.05.2005. It is rightly submitted on behalf of the respondent nos.9 to 13 that it was necessary for the petitioners to state that the document was in possession of one of the plaintiffs, was retained by the plaintiffs at a particular establishment, the attempt made by the plaintiffs for the search of the document and who made the attempts for searching the said document. The trial Court could not have granted permission to the petitioners to lead secondary evidence in regard to the agreement dated 08.05.2005 on the mere asking and on a stray statement that it had been lost merely because it was not traced during a days time. In the facts and circumstances of the case, the trial Court was justified in rejecting the application filed by the petitioners. The judgments reported in (2002) 10 SCC 82 and 2007(2) Mh.L.J. 406 cannot be of any assistance to the case of the petitioners. It is also rightly submitted on behalf of the respondent nos.9 to 13 that 6 the admission in respect of the existence and the contents of the original agreement by the respondent nos.1 to 4 would also not be of any assistance to the case of the petitioners for seeking permission to tender secondary evidence as in view of the provisions of Section 65(b) of the Evidence Act 1872, when the existence, conditions or contents of the original are proved to be admitted in writing by the person against whom it is proved or by his representative in interest, the written admission is admissible. In the result, the writ petition fails and is dismissed with no order as to costs. The request made on behalf of the petitioners for grant of permission to file a fresh application for leading secondary evidence by giving the necessary particulars, is rejected for the simple reason that in the facts of this case, the petitioners have clearly stated in the application before the Court that they were under the bona fide belief that the original was already produced in the Court at the time of filing of the suit. In such circumstances, granting an opportunity to the petitioners to file a fresh application seeking grant of permission to lead secondary evidence would 7 result in protracting the proceedings in the suit, which has been directed by this Court to be decided within a particular time by a time bound programme. JUDGE APTE