1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.4161 OF 2009. 1. Brijgopal Shivgopal Lulani, R/o. Salavahana Nagar, Gauvarvaram, Ellure, Distt. West Godavari, Andhra Pradesh. 2. Ramavtar Banwarilal Sharma, R/o. Dhanwanti Nagar, Wardha. 3. Sunil Satyanarayan Saraogi, R/o. Cement Road, Shivaji Nagar, Nagpur. .. PETITIONERS. // VERSUS // 1. Barkat Bhai S/o. Habib Bhai Somani, R/o. 102, Sewa Sadan, Central Avenue, Nagpur. .... RESPPONDENT. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri M.G.Bhangde, Senior Advocate for Petitioners. CORAM : R.C.CHAVAN, J. DATED : OCTOBER 09, 2009. 1. Heard. 2. This petition is directed against order passed by learned Civil Judge Senior Division, Nagpur permitting the plaintiff to tender secondary evidence in respect of the agreement dated 22nd January, 2004, which was stated to have been lost. 2 3. The learned senior Counsel for the petitioners points out that this Court had an occasion to consider in the past the plaintiffs’ pleas in respect of this very document when the matter arising out of grant of injunction came up before this Court. The judgment is reported at 2006 (2) ALL MR 285. Observations of this Court in paragraph 16 may be usefully reproduced as under : “16. The trial court has not considered all these facts in detail though the same are available on record. The trial Court has disbelieved the contention of respondent/ plaintiff about his possession but has still accepted that there is prima facie case in his favour. The court below has accepted the receipt of Rs.20,000/- on 7-12 extract and also agreement dated 22.1.2004 for that purpose. It is not understood why respondent / plaintiff did not obtain proper receipt for Rs.20,000/- from appellants. In plaint paragraph 3, date of payment of Rs.20,000/- to present appellant is stated to be 22.01.2004 at the time of execution of agreement which also is inconsistent. From the conduct of respondent discussed above, it is more than apparent that there was no such receipt or agreement between parties. The inconsistency in area of suit property agreed to be sold, its price, its possession and date of agreement militate against the story of respondent. On record there is report of handwriting expert opining that signatures on alleged agreement dated 22.01.2004 being not of appellants. All these reveal absence of prima facie case in favour of respondent. The respondent/ plaintiff has not come to court with any definite case in this respect in his favour. The court below has overlooked the effect of such inconsistent case vis-a-vis the prima facie case. When the case of respondent is not definite but inconsistent there cannot be any prima facie case in his favour. Material on record is sufficient to deny existence of any such agreement, oral or otherwise. It is also apparent that respondent 3 / plaintiff did not approach the court with clean hands. The value at which the respondent/ plaintiff is trying to block the property of appellant is very meager considering the value disclosed by him and his witness to police authorities and also un- refuted government valuation thereof. In such circumstances, it is un-equitable to grant any relief of temporary injunction to such person. ....” 4. The learned counsel for the petitioners, therefore, submitted that in face of this prima-facie finding that the original document does not at all exists there is no question of giving secondary evidence in respect to document which did not exist. Relying on judgment of this Court in Bank of India Vs. M/s. Allibhoy Mohammed, reported at 2008 (4) All MR 808 the learned counsel for the petitioners submitted that existence of original is the first condition for seeking leave to tender secondary evidence. 5. The learned senior counsel also drew my attention on a judgment of the Supreme Court in Ashok Dulichand Vs. Madahavlal Dube, reported at (1975) 4 SCC 664. In that case, the facts were slightly different. It was alleged that the original was in possession of the respondent and photostat copy of the document was said to be produced without explaining as to how the petitioners get an opportunity of getting photostat copy prepared and therefore, the Court found that the photostat copy to be suspicious. The respondent had denied that there was any such document in his possession. In this context the Supreme Court held that there was no infirmity in the order of the High Court refusing leave to tender secondary evidence. 4 6. In this case, the plaintiff has came out with the allegation that the original was lost and a report in respect of such loss has been tendered. The learned senior counsel points out that first information report, on which reliance is placed, is vague and does not show as to which document was exactly lost. It merely states that along with some other documents, which have been enumerated, documents about the sale and purchase of land were stolen i.e. there is no reference to the document dated 22nd January, 2004 in the first information report. Therefore, according to the learned counsel, first, since the original was not at all in existence and secondly, since the case of loss is also suspicious, the learned trial Judge should not have permitted the plaintiff to tender secondary evidence in respect of the said document. 7. I have weighed consequences of interference in an order of this type at this stage with the mischief that is likely to be occur, if the order is not interfered with, and I find that interfering in the order at this stage is likely to lead to a greater damage than refusing to interfere in the order and permitting the parties to raise all these contentions before the trial Court and pointing out to the trial Court that the document which is sought to be tendered is itself suspicious. This is so because the question whether the document existed or not is not conclusively decided by this Court in the judgment reported at 2006(2) All MR 285. This was prima-facie opinion at the stage of consideration of an injunction application. Therefore, unless evidence is scrutinized and a final verdict is rendered on this point, it would not be appropriate to prevent the plaintiff from even relying on a document which 5 may be suspicious. The petitioner would undoubtedly be entitled to prove that document is thoroughly unreliable and cooked up, in which case the trial Court would undoubtedly consider the question on saddling costs for tendering such evidence. 8. Interference by this Court in proceedings before the trial Court while recording evidence is fraught with greater harm since it is a common experience that a precedent in one case on particular facts gets extended over a course of time and at every drop of hat somebody would approach this Court when the trial is going on. In view of this, the petition is dismissed. 9. The learned trial Judge would undoubtedly take into consideration the observations of this Court in a judgment reported at 2006(2) ALL MR 285 as also all the contentions which have been raised by the petitioners about veracity of the document, which is sought to be tendered. JUDGE RR.