-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 518 OF 2011 Mr. Fredrick C. D' Souza, Presently residing at B-101, Mantri Woodlands, Arakere, Bannerghatta Main Road, Bangalore – 560 076. Through his duly constituted Power of Attorney, Mr. Harsha Kumar, 30 years of age, s/o. Papanne Gowda, r/o. No. 30, 7th Cross Lovelle, Bangalore – I 560001. …... Petitioner V e r s u s Mr. Carlos Tavora r/o. Trionora Apartments. Municipal Market Area, Panaji, Goa. …... Respondent Mr. J. Godinho, Advocate for the Petitioner. Mr. Valmiki Menezes, Advocate for the Respondent. Coram :- F. M. REIS, J Date : 22 nd September, 2011. ORAL JUDGMENT Heard Shri Godinho, learned Counsel, appearing for the Petitioner and Shri V. Menezes, learned Counsel appearing for the Respondent. 2. Rule. Heard forthwith with the consent of both the Counsel. The Respondents waive service on Rule. -2- 3. The above Petition challenges the Order dated 06.08.2011, passed by the learned Civil Judge, Senior Division, Panaji, whereby the application filed by the Petitioner to lead secondary evidence in respect of two Power of Attorneys, came to be rejected. 4. Shri Godinho, learned Counsel appearing for the Petitioner has pointed out that the impugned Order cannot be sustained as the Respondent had given no objection to the application filed by the Petitioner and, as such, the learned Judge was not justified to reject the application filed by the Petitioner. The learned Counsel further pointed out that the existence of the said document was admitted by the parties and, as such, under provisions of Section 65-(b) of the Evidence Act, the Petitioner was entitled to lead secondary evidence. The learned Counsel as such submitted that the impugned Order cannot be sustained and deserves to be quashed and set aside. 5. Shri Valmiki Menezes, the learned Counsel appearing for the Respondent has submitted to the Orders of this Court. 6. Having heard the learned Counsel and on perusal of the record, I find that though under the provisions of Section 65-(b) of the Evidence Act, secondary evidence can be given in cases in which the existence of the document is proved to be admitted in writing by a person against whom the document is sought to be proved by the opposite party, but, however, in the present case, I find that the Petitioner in their application have not invoked the said provisions of law nor they -3- have disclosed that the existence of the said document was admitted by the parties. Apart from that, the learned Judge has rejected the application on a technical ground that the notice was not given to the party though the same was given to their Advocate. Considering the overall facts and circumstances of the case, I find that, in the interest of justice, it would be appropriate that the impugned Order passed by the learned Judge dated 06.08.2011, be quashed and set aside and an opportunity be given to the Petitioner to file a fresh application to lead secondary evidence in accordance with law. 7. In view of the above, I pass the following : ORDER (i) The impugned Order dated 06.08.2011, is quashed and set aside. (ii) The Petitioner is at liberty to file an appropriate application to lead secondary evidence afresh which shall be decided by the learned Judge after hearing the parties in accordance with law. (iii) All contentions of the parties are left open. (iv)The above Petition stands disposed of accordingly. (v) Rule is disposed of in the above terms. F .M. REIS, J. arp/*