1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 1744/2011 (MADANLAL M. NANDWANSHI VERSUS PRASHAND B. GATHE & OTHERS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri P.S. Patil, counsel for the petitioner. Shri J.B. Kasat, counsel for the R-1 & 2. Shri S.P. Deshpande, counsel for the R-3. CORAM : SMT. VASANTI A. NAIK, J. DATE : AUGUST 18, 2011 . By this petition, the petitioner impugns the order passed by Civil Judge (Senior Division), Achalpur on 27.01.2011 allowing an application filed by the plaintiffs- respondents under Section 65 of the Evidence Act for tendering secondary evidence. It was the case of the plaintiffs that the plaintiffs came in possession of the property in question in view of a rent note executed by the defendant no.1 in favour of the plaintiffs on 12.02.2007. According to the plaintiffs, the original rent note was with the defendant no.1 and the defendant no.1 had failed to produce the same in spite of issuance of notice to the defendant no.1 to produce the same. An application was moved by the plaintiffs for permission to tender secondary evidence in respect of the document dated 12.02.2007 but, that application was rejected by the Court by an order dated 24.11.2010 on the ground that the plaintiffs had not prima-facie shown that the 2 document was in possession of the defendant no.1. Since there was no evidence on record to show that the tenancy document was last seen in the custody of the defendant no.1, the trial Court rejected the application as it was the case of the defendant no.1 that a rent note was not executed on 12.02.2007 and the said document was a false and fabricated document. After the rejection of the application, the witnesses were examined and the plaintiffs examined their brother, who was according to the plaintiffs an attesting witness to the rent note dated 12.02.2007. It was stated by this witness in his evidence that the original rent note dated 12.02.2007 was in the custody of the defendant no.1. After this evidence was tendered, the plaintiffs again applied for tendering secondary evidence in respect of the document dated 12.02.2007, specially in the light of deposition of P.W. 2, the witness of the plaintiffs. Though the second application was opposed by the defendant no.1, the trial Court, by the impugned order dated 27.01.2011, allowed the application. On hearing the learned counsel for the parties and on perusal of the impugned order, it appears that in the peculiar facts and circumstances of the case, the trial Court did not commit any illegality in allowing the application filed by the plaintiffs for tendering of secondary evidence in regard to the document dated 12.02.2007. The trial Court observed that the previous application was dismissed mainly on the ground that there was nothing on record to show that the original document was in the custody of the defendant no.1 but, after P.W. 2 was examined, there was some evidence on record that the document was in possession of the defendant 3 no.1. In view of the subsequent developments, the trial Court though that it was necessary to grant an opportunity to the plaintiffs to adduce secondary evidence in respect of the rent note dated 12.02.2007. Though the principles of Res-Judicata apply at the interlocutory stage also, it cannot be said in the peculiar facts and circumstances of this case that the second application filed by the plaintiffs for permission to tender secondary evidence was hit by the principles of Res-Judicata and, therefore, the trial Court should not have allowed the application. Since P.W.2 deposed that the defendant no.1 was possessing the original document dated 12.02.2007 and since the defendant no.1 had not produced the document in spite of issuance of notice to him, the trial Court had allowed the application by the impugned order dated 27.01.2011. There is no infirmity in the impugned order and the same calls for no interference in exercise of the writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE