1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 3561 OF 2011 Parasram Vithobaji Dhande & another Vs. Sau. Kumudini Krishnarao Wanjari & Others. .......................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders .......................................................................................................................................... Mr. A.D. Mohagaonkar, Adv. for the petitioners. CORAM : R. M. SAVANT, J. DATE : 29th JULY, 2011. 1] The above petition takes exception to the order dated 16.4.2011 passed by the Civil Judge, Junior Division, Mauda, by which order the application Exh.57 filed by the petitioners for leading secondary evidence of the alleged Will Deed dated 22.3.1997 came to be rejected. The petitioners are original defendant Nos. 1 & 2 in the suit filed by the respondents herein bearing Reg. Civil Suit No. 180/2008 for partition and separate possession of the properties in question. It is the case of the defendant Nos. 1 & 2 i.e. the petitioners herein that the said Will Deed was executed by their mother in their favour. The petitioners sought to rely upon a Photostat copy of the Will Deed. The petitioners had earlier filed an application seeking direction against the plaintiffs and the defendant nos. 3 & 4 that they may be directed to produce original as the said Will Deed might be in their custody. The said application of the petitioners came to be rejected by the .....2/- 2 trial court by order dated 17.9.2010. It is thereafter that the instant application Exh. 57 came to be filed by the petitioners. The trial court by referring to the aforesaid antecedent events and also considering the provisions of Section 66 of the Indian Evidence Act, rejected the said application filed by the petitioners by impugned order dated 16.4.2011 interalia on the ground that the petitioners ought to have given notice to the concerned parties under section 65(a) of the Evidence Act. 2] It is sought to be contended by the learned counsel appearing for the petitioners that it was not the case of the petitioners that the plaintiffs and the defendant Nos. 3 & 4 were in custody of the said document but on the presumption that they may be in custody of the said document i.e. Will Deed dated 22.3.1997 that the earlier application came to be filed by them. The learned counsel would contend that in fact the difficulty of the petitioners is that the said Will Deed has been lost and therefore the trial court had erred in relying upon Section 65(a) of the Evidence Act. In that context, a perusal of the application filed by the petitioners discloses that beyond stating that the said document has been lost, nothing has been stated by the petitioners in support of their case for permitting them to lead secondary evidence. It is trite that for seeking permission to lead secondary evidence a foundation has to be laid by the parties as to in what circumstances the said document has been lost or a police complaint in that regard. None of the kind has been done in the instant matter. The learned counsel for the respondents i.e. .....3/- 3 original plaintiffs and defendant Nos. 3 & 4 Shri Anand states that the petitioners have also acquired the knowledge of the alleged Will Deed long back and if they were so concerned about it, they ought to have taken steps in respect of loss of the said Will Deed. Having not done so, the petitioners are not entitled to the permission for leading a secondary evidence merely on the ground that the said Will Deed has been lost. There is merit in the contention of the learned counsel for the original plaintiffs. The application Exh. 57 is bereft of the said particulars. Therefore, though the trial court has rejected the application on the ground that the petitioners ought to have given a notice under section 65(a), in my view, the order refusing the petitioners to lead secondary evidence cannot be faulted with in the facts and circumstances of the above case. The writ petition is accordingly dismissed. It would be open for the petitioners to adopt the course of action as directed by the trial court. JUDGE Hirekhan ...../-