1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4859 OF 2009 Shrirang S/o Madhavrao Thorat Age 53 years, Occ-Service, R/o Jaiprakash Vasahat Kautha Road, Vasmat Tq.Vasmat, Dist.Hingoli.s .. PETITIONER [ORIG.DEFT.NO.1] Versus 1] Sou. Draupadabai Wamanrao Thorat Age 58 years, Occ-Agriculture And Household, R/o Vasmat, Dist.Hingoli. 2] Yashwant Babarao Ubare Age 48 years, Occ-Contractor R/o Bauddhawada, Tq.Vasmat,Dist.Hingoli. 3] Sou. Sushilabai Ramchandra Bansode Age 38 years, Occ-Household R/o Jaiprakash Vasahat, Vasmat, Tq. Vasmat, Dist.Hingoli. .. RESPONDENTS [ORIG.DEFT.NOS.2 & 3] .... Shri P.R.Katneshwarkar,Adv.for petitioner. Shri S.P.Katneshwarkar,Adv.for Respondent no.1. 2 Respondents 2 and 3 served-absent. .... CORAM : R.K. DESHPANDE, J. DATE : 8th JUNE, 2010. ORAL JUDGMENT : 1. This petition challenges the order dated 1/4/2009 passed by learned Joint Civil Judge, Junior Division, Vasmat below Exh.56 filed in Regular Civil Suit No.139/2006. Notice was issued in this matter on 27/3/2009 and during the pendency of petition, stay to the proceedings of Regular Civil Suit No.139/06 was granted. Shri S.P.Katneshwarkar, learned counsel for respondent no.1 waives service of notice. Shri P.R.Katneshwarkar, learned counsel for petitioner submits that the order impugned in the present petition is passed on the application filed by the plaintiff and hence he does not want to press this petition against respondents 2 and 3. Rule. Rule returnable forthwith. The notices to respondents 2 and 3 are dispensed with. By consent of counsels for petitioner and respondent no.1, matter is heard finally. 3] The trial Court by impugned order dated 1/4/2009, has allowed application [Exh.56] filed by the original plaintiff. The plaintiff has filed application [Exh.56] for rejecting the prayer of 3 the defendant no.1 to exhibit the Agreement dated 22/7/1985. The trial Court on the basis of provisions of Section 68 of the Indian Evidence Act, has held that in order to prove the contract dated 22/7/85, it is necessary that atleast one of the attesting witnesses should be examined. Shri P.R.Katneshwarkar, learned counsel for petitioner has urged that Section 68 of the Indian Evidence Act, can be invoked only where document is required by law, to be attested by witnesses. According to him, the agreement to sale is not required by law to be attested by the witnesses. This position of law as urged by learned counsel for the petitioner has not been disputed by the learned counsel for respondent no.1. Section 68 of the Indian Evidence Act also makes it clear that the same is applicable only in cases of documents, which are required by law, to be attested. Hence, the trial Court has thus committed an error of law, in invoking the provisions of Section 68 of the Indian Evidence Act. 4] Shri S.P.Katneshwarkar, learned counsel for respondent no.1 has urged that as a matter of fact, the agreement dated 22/7/85 has been attested by the witnesses and hence it is obligatory on the part of the deft.no.1 to examine atleast one witness, as required in Section 68 of the Indian Evidence Act and the trial Court was therefore, right in holding that the deft.no.1 is at liberty to prove agreement of sale as per the 4 provisions of the Indian Evidence Act, by examining the witnesses. If the position of law is accepted that the agreement to sale is not required by law to be attested by any witness, then mere fact that the document is attested by witnesses, would not make the document inadmissible in evidence, if the witnesses are not examined. The learned counsel for parties state that the executant of the document has been examined, the document is thus proved, and the trial Court was therefore, wrong in allowing application [Exh.56] and refusing to mark the document as Exhibit. 5] In the result, instant Writ Petition succeeds. The order dated 1/4/2009 passed by the trial Court allowing Application Exh.56 filed in Regular Civil Suit No.139/06 is hereby quashed and set aside. Application Exh.56 stands rejected. The trial Court is directed to mark the Agreement dated 22/7/1985 as Exhibit and shall proceed accordingly. Rule made absolute in above terms. There shall be no order as to costs. [R.K. DESHPANDE, J.] umg/wp4859-09