( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 984 OF 2010 Jeevan s/o Siddhuji Chavan, R/o Nanded, Tq. & Dist. Nanded. PETITIONER VERSUS Gaurav s/o Prataprao Desai, R/o c/o Pratap Govindrao Desai, M.I.D.C. Road, at post Aurangabad, Tq. and District Aurangabad RESPONDENT ..... Mr. D.Y. Nandedkar, advocate for the petitioner. Mr. C.T. Jadhav, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 29th April, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent of learned counsel for the parties. 2. By the impugned order, application filed by the petitioner for permission to lead secondary evidence in respect of a document called “Saudi Chithi” dated 21-05-2007 ( 2 ) came to be rejected. The petitioner filed suit (Spl. C.S. 15/2008) for specific performance of an agreement of sale. His case before the trial Court is that the respondent and his parents had agreed to alienate the agricultural properties, particularly four (4) parcels of land out of Gut No. 264/1 as per terms of the agreement of sale dated 21-05-2007. The petitioner produced a copy of said Souda Chithi on record. He submitted an application seeking leave to lead secondary evidence for the reason that original Souda Chithi was not in his possession. He had called original Souda Chithi from the custody of the respondent, but the respondent had replied that the document was not in his custody. The application was resisted by the respondent. The trial Court rejected the application. 3. Heard learned counsel for the parties. 4. Question involved in the petition is as to whether the trial Court committed patent error while rejecting the application of the petitioner when the petitioner asserted that out of the common transaction, the parents of the respondent had executed four (4) sale-deeds in his favour in respect of other parcels of the lands, excluding the suit ( 3 ) land. The petitioner gave a notice to the respondent to produce the original Souda Chithi. He asserted that the original document was in custody of the defendant. Perusal of the reply given by the respondent to such notice (P-30) reveals that the defendant simply alleged that the document is expected to be in the custody of the petitioner himself. The defendant further alleged that the document was not in his custody and, therefore, he was unable to produce it. The reply itself does not, however, show that existence of the document was categorically denied by the respondent. 5. It is important to notice that the petitioner categorically alleged that he paid the consideration amount by cheques to the parents of the defendant in pursuance to the same agreement i.e. Souda Chithi. The petitioner asserted in paragraph No. 7 of the plaint that he issued four (4) cheques towards consideration. It is also averred that the four (4) sale-deeds were executed in his favour. The attending circumstances and the nature of reply given to the notice for production of the document i.e. Souda Chithi, considered together, prima facie show that such document was brought into existence. It may not be that the same document is duly executed by the defendant or his parents and it may be that ( 4 ) the defendant will be able to demonstrate that the copy of the Souda Chithi is not a genuine document. Still, however, when ex-facie material is available on record, the permission to lead secondary evidence could not have been rejected. The trial Court observed that stamp of Notary Public does not bear any serial number. That cannot be the reason to reject the application. Ordinarily, rejection of such a prayer may amount to denial of opportunity to a party to prove his/her case. The application was supported by affidavit of the petitioner. The learned counsel for the respondent seeks to rely on “Bank of Baroda, Bombay vs. Shree Moti Industries, Bombay and others” 2009 (1) Mh.L.J. 282. A Single Bench of this Court held that before grant of permission to lead secondary evidence, there must be proof of existence of the original document and there must be evidence of the loss. When prima facie material indicates that the petitioner is not able to produce the original document and that there is some probability of bringing about such document into existence, the permission should have been granted to him for leading of secondary evidence. Whether to believe such evidence or to discard it is, of course, within the domain of the trial Court after such evidence is tendered. 6. In the result, the petition is allowed. The impugned ( 5 ) order is set aside. The application is granted. Rule is made absolute accordingly. The trial Court shall proceed with the trial expeditiously. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp984-2010