1 wp-9030.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9030 OF 2011 Kuldeep Umraosingh Ostwal & ors. : Petitioners versus State of Maharashtra Through Government Pleader & ors. : Respondents. Mr.Dinesh Tiwari i/by Dinesh Tiwari and Associates for the Petitioners. Mr. S D Rayrikar AGP for Respondent No.1. Mr. R D Suryawanshi AGP for Respondent Nos. 2 to 9 Mr.Sandesh D Patil for Respondent No.10. CORAM : R M SAVANT, J. DATE : 05th December 2011 ORAL JUDGMENT : 1 Rule, with the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the order dated 20/9/2011 passed by the Civil Judge, Senior Division, Thane by which order, the Application Exhibit 242 filed by the Respondent Nos.2 to 9 herein i.e. the Defendant Nos.1 to 8 to the suit came to be allowed and they were allowed to lead secondary evidence in respect of the documents mentioned in the said Application. 3 Except the documents at Sr.Nos.1, 2(a), 2(l) and 3, there is a serious dispute raised by the learned counsel for the Petitioners i.e. the Original Plaintiffs and the learned counsel for the Respondent No.10 herein i.e. the 2 wp-9030.11.sxw Original Defendant No.9 as to the permission granted for leading secondary evidence to the Defendant Nos.1 to 8 in respect of the rest of the documents. The impugned order discloses that the trial Court has recorded that the Plaintiffs have admitted the documents at Sr.No.2(b) to 2(e) whereas, the learned counsel for the Petitioners/Plaintiffs disputes the same. There is also a dispute raised in respect of the documents mentioned at Item Nos.2(b) to 2(e) by the Petitioners and Item Nos. 2(f), (g), (h), (i), (j) and (k). In so far as documents at Sr.Nos.2(b) to (e) are concerned, it is the contention of the Petitioners that the trial Court has wrongly recorded that the Petitioners/Plaintiffs admit the said documents. It is further the contention of the Petitioners that only photo copies of the said documents are produced without the Defendant Nos. 1 to 8 certifying them as true copies. In so far as Item Nos. 2(i), (j), (k) are concerned, it is the contention of the Petitioners that the Defendant Nos. 1 to 8 have made a statement that the Pen Co-operative Urban Bank is in liquidation and by merely accepting the said statement, the Defendant Nos. 1 to 8 have been given permission to lead secondary evidence in respect of the said documents. In so far as Item Nos. 2(f), (g) and (h) of Exhibit 242 are concerned, it is the case of the Defendant Nos. 1 to 8 that the said documents are in the custody of the Defendant No.9. A perusal of the Application Exhibit 242 does not disclose the reason for such conclusion by the Defendant Nos.1 to 8. The trial Court relying on the reply filed by the said Defendant No.9, wherein on the first occasion he has stated that the certified copies could be obtained and thereafter by subsequent reply has denied that he 3 wp-9030.11.sxw is in possession has permitted the Defendant Nos. 1 to 8 to lead secondary evidence. 4 Having heard the learned counsel for the parties, in my view, the impugned order is required to be set aside and matter is required to be relegated back to the trial Court for de-novo consideration of the said Application-Exhibit 242 as the impugned order ex-facie discloses that the trial Court without considering as to whether the provisions of Sections 65 and 66 of the Indian Evidence Act have been complied with, in respect of the documents which are not admitted in the said Application Exhibit-242, has allowed the Defendant Nos.1 to 8 to lead secondary evidence. 5 In so far as documents at Sr.Nos. 2(b) to 2(e) are concerned, it is required to be noted that though there is a reference to the said documents in the plaint, two of the documents i.e 2(c) and 2(e), the Defendant Nos.1 to 8 have only produced the photo copies purportedly of the originals. The Defendant Nos. 1 to 8 have averred in their application that they have applied for the certified copies but what has happened to the said application has not been mentioned except stating that in so far as the documents relating to the Court are concerned, they are kept in the godown at Ulhasnagar. 6 In so far as documents at Sr.Nos.2(f), (g) and (h) are concerned, the Defendant Nos.1 to 8 have not stated in the said Application Exhibit 242 as 4 wp-9030.11.sxw to how the documents are in the custody of Defendant NO.9. It is the case of the Defendant No.9 in his reply to the said Application Exhibit 242 that the Defendant Nos. 1 to 8 could produce the certified copies of the said documents from the Sub-Registrar. The order does not disclose any of the aforesaid aspects, and merely on the basis of the notice given to the Defendant No.9 and his reply to the said notice that the trial Court has permitted the Defendant Nos. 1 to 8 to lead secondary evidence in respect of the said documents. The trial Court ought to have satisfied itself first that Defendant Nos. 1 to 8 were not in position to get the certified copies of the said documents as also the fact that the said documents were in the custody of the Defendant No.9 and that the Defendant No.9 is refusing to produce the same. Only after reaching such a conclusion that the trial Court could have permitted the Defendant Nos.1 to 8 to lead secondary evidence in respect of the said documents. 7 In so far as documents at Sr.Nos.2(i),(j) and (k) are concerned, the trial Court by accepting the statement of the Defendant Nos.1 to 8 that the said Pen Co-operative Urban Bank is in liquidation has allowed the Defendant Nos. 1 to 8 to lead secondary evidence in respect of the said documents at Sr.Nos. 2(i),(j),(k). The Defendant Nos.1 to 8 ought to have made attempts to get the said documents proved through the representative of the Official Liquidator, and only thereafter if they had failed to get them so proved or to get the certified copies of the said documents from the Official Liquidator, that the said Defendant Nos.1 to 8 could have applied for leading secondary evidence. 5 wp-9030.11.sxw 8 In that view of the matter, the impugned order would have to quashed and set aside, and is accordingly quashed and set aside. The matter is remitted back to the trial Court for de-novo consideration of the Application- Exhibit 242. In view of the fact that the suit has been expedited by the Apex Court, it would be just and proper to direct the trial Court decide the said Application Exhibit 242 on a given day after the parties appear before it. The parties therefore to appear before the trial Court on 19th December 2011 and produce this order before the trial Court. The trial Court thereafter to dispose of the said application as expeditiously as possible without granting unnecessary adjournments to the parties but not later than two weeks of 19th December 2011. 9 The Defendant Nos. 1 to 8 would be entitled to file a fresh application for leading secondary evidence in the trial Court when they appear on 19/12/2011, if they so choose or amend the existing application by obtaining the permission of the trial Court on the said day. If a fresh application is filed, the Defendant Nos.1 to 8 to serve a copy of the same well in advance to the Plaintiffs and the Defendant No.9 i.e. before 19/12/2011. 10 Rule is accordingly made absolute to the aforesaid extent with the parties to bear their respective costs. [R.M.SAVANT, J]