1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.121 OF 2009 MESSR, SHANTILAL KHUSHALDAS AND BROTHERS PVT. LTD., a Company incorporated under the Companies Act, 1956, and having its registered office at Salgaocar Chambers, Margao-Goa. …. Petitioner V/s 1. Smt. Radha Nandlal Karlo, major; and her husband, 2. Shri Nandlal Karlo, major, Both residing at 3rd Floor, Govardhan Apartments, Aquem, Alto, Margao-Goa. 3. Smt. Sujata Sharad Korgaonkar major; and her husband, 4. Shri Sharad T. Korgaonkar, major; Both residing at Damodar Bhawan, Chittaranjan Road, Vile Parle (East), Mumbai. 5. Smt. Savita B. Gianani, major, residing at Damodar Housing Society, Aquem-Alto, Margao, Goa. 6. Rohit Raghuvir Paingankar major and his wife, 7. Shri Nutan Rohit Paingankar 8. Shri Rajendra Raghuvir Paingankar; and his wife, 9. Smt. Pratibha Rajendra Paingankar, All residing at House No.442, Opposite Peerless Office, Cine Vishant Road, Aquem-Alto, Margao-Goa. …. Respondents 2 Mr. P.S. Rao, Advocate for the Petitioner. Mr. C. Mascarenhas, Advocate for Respondents Nos.1 to 5. Mr. V. Menezes, Advocate for Respondents Nos. 6 to 9. CORAM : N.A. BRITTO J. DATE : 9th JUNE, 2010 JUDGMENT: Heard. Rule. By consent, heard forthwith. 2. The petitioner herein is the defendant no.1 in Special Civil Suit No.5/1994/A. This writ petition is filed by them challenging the order dated 7/01/2009 of the learned Civil Judge Senior Division, Vasco-da- Gama by which the learned Civil Judge has declined to grant their application dated 17/11/2008-Exhibit 164. 3. The suit was filed by Raghuvir Rajaram Paigankar and after his demise the respondents herein were brought on record. Respondents nos. 2 to 5, who are the legal representatives of the said Raghuvir Paigankar continue to be defendants nos. 2 to 5 in the said special suit while respondents nos. 1 to 5 have been brought on record as plaintiffs. 4. According to the defendant no.1, at the time of filing the written statement, the defendant no.1 had enlisted the documents in the list of documents accompanying the written statement and which were served on the respondents. According to the defendant no.1, the file containing the documents of the defendant no.1 i.e. the petitioner, which was kept 3 in their office was misplaced/lost during the pendency of the suit and as the photocopies of the said documents were already on record of the file, the defendant no.1 filed an application dated 21/10/2008 to produce secondary evidence and the said application came to be rejected by order dated 4/11/2008, inter alia, on the ground that it was premature as the defendant no.1 had not served a notice under Section 66 of the Evidence Act, prior to filing the said application. 5. Thereafter, the defendant no.1 issued notices dated 01/11/2008 under Section 66 of the Evidence Act to respondents nos. 1 to 9 calling upon them to produce the originals of the said documents and as the respondents failed to comply with the notice, the defendant no.1 filed another application dated 17/11/2008 seeking leave to produce and rely upon secondary evidence on the ground that the aforesaid documents were in possession of respondents nos.1 to 5 and/or respondents nos. 6 to 9, who had failed to comply with the notice issued by the petitioner. The said application came to be dismissed by the impugned order. 6. The case of the petitioner/defendant no.1 was that the documents mentioned at serial no. 1 to 26 were lost and the application of defendant no.1 dated 21/10/2008 was dismissed by order dated 4/11/2008 as premature as no notice under Section 66 of the Evidence Act was given and, thereafter, the defendant no.1 had served a notice upon the plaintiffs 4 as well as defendants nos. 2 to 5 but they had not responded to it and therefore they be allowed to prove the said documents by secondary evidence. As per the plaintiffs, they did not have the said documents in their possession at any time as their previous advocate had not handed over to them the file containing the said documents and he had withdrawn from the case and the same appeared to have been given to defendants nos. 2 to 5. The defendants nos. 2 to 5 in their turn stated that it is the plaintiffs who should have been in possession of the some of the documents as they were addressed by defendant no.1. 7. According to Shri Rao, the learned Counsel of the petitioner/defendant no.1, photo/xerox copies of all the documents i.e. 1 to 26 were filed along with the written statement. However, when the finding of the learned Civil Judge was brought to his notice that the documents at serial no.2,5,12,13,16 & 25 were not on record, Shri Rao, has fairly submitted that the petitioners would press for their application for the documents, copies of which were on record. Shri Menezes, appearing on behalf of defendants nos. 2 to 5 has adopted the submissions made by Shri Mascarenhas on behalf of the plaintiffs and has further contended that the defendant no.1 did not even make use of the said documents/copies at the time of cross-examination of the plaintiffs. However, in my view, the fact that the defendant no.1 did not make use of the said photo copies cannot come in their way of allowing 5 the application; presumably they did not make use of the same because they did not have the original of the said documents and leave to produce copies was not granted in their favour. 8. Be that as it may, there is no dispute that the documents at serial nos.3,6,8 & 22 are copies of judicial orders and although it was stated by the plaintiffs in their reply that they did not have objection for the introduction of secondary evidence of the said documents at serial nos.3,6,8 & 22, the photocopies of which were given to the plaintiffs, it appears that the plaintiffs had given no objection for production of photo/xerox copies of the said judgments, and, if that be so, in my view, the learned Civil Judge could not have been right in disallowing the application to the extent that the plaintiffs had given no objection for the production of photocopies of the said judicial orders. 9. Shri Mascarenhas, the learned Counsel appearing on behalf of the plaintiffs has fairly conceded that the documents at serial nos. 4,7,9,10 & 24 are copies of correspondence addressed by defendant no.1 to the plaintiffs and, being so, the plaintiffs would have no objection in case the defendant no.1 is allowed to lead secondary evidence of the same with a right to raise an objection as available in law. Accepting the said statement, the defendant no.1 would be allowed to lead secondary evidence of the said documents namely at serial no. 4,7,9,10 & 24. 6 Admittedly, the documents at serial no.2,5,12,13,16 & 25 were not on record and the application of the defendant no.1 is not pressed as regards the said documents. Document at serial no.2 was also disallowed based on judgment of this Court dated 27/09/2006. 10. Documents at Serial No.11,19,20 and 21 can also be allowed to be proved on the same principle as documents at serial no.4,7,9,10 & 24. 11. It is submitted on behalf of plaintiffs that the documents at serial nos.1,14,15,17,18,23 & 26 is a correspondence/documents which pertain to third parties or parties who are not known; and there is no issue raised as regards this submission made on behalf of the plaintiffs, by defendant no.1. 12. That being the position in my opinion the Writ Petition deserves to succeed. The application of the petitioner/defendant no.1 dated 21/10/2008 is allowed partly with leave to the petitioner/defendant no.1 to produce secondary evidence of the documents as indicated herein above. 13. Rule made absolute on the above terms with no order as to costs. N.A. BRITTO, J. NH/-