1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.9355 of 2009 Bhartiya Kala Prasarani Sabha .. .. Petitioner v/s. Shri Rajiv V. Bhoite & anr. .. .. Respondents Mr.S.V. Pitre i/by M/s.Manoj Wadekar & Associates for Petitioner. Mr.V.P. Sawant with Mr.Nitin Dhumal i/by Mr.N.N.Misal for Res.No.1. Mrs.Neha Bhide, AGP for Res.No.2. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 5th February, 2010 P.C. : 1.Rule. Rule is made returnable forthwith. 2.There has been a litigation between the parties before the Court of the learned Charity Commissioner. This is essentially with regard to the application for membership and the list of certain members / trustees of Trust in which both the Petitioner-Society and the 1st Respondent claim interest. Proceedings have been initiated and have gone on in the Court of the learned Charity Commissioner. Evidence has been led. The evidence shows whether the original documents were 2 produced or whether xerox copies of some documents were produced. The challenge to the production of xerox copies of some of the documents is also reflected in the evidence. Considering the proof, if any, of the documents produced, the learned Charity Commissioner passed his order declaring some members eligible in the two applications taken out by the Petitioner s group as well as the 1st Respondent s group being Miscellaneous Application No.61 of 2005 and Miscellaneous Application No.46 of 2005 by a common order. That order was challenged by both the parties in Writ Petition Nos. 5203 of 2008 and 5914 of 2008. 3.By two orders dated 17th April 2009 in these Writ Petitions, both the parties were allowed to lead further evidence by producing their respective original documents. 4.The 1st Respondent herein has produced his original documents before the learned Charity Commissioner and the hearing, upon remand, is stated to have commenced, and is going on before the learned Charity Commissioner. 5.The Petitioner did not produce any further original documents. It instead contended that it had already produced the original documents. It stated that those 3 were lost after they were produced in the Court. It made an application to lead secondary evidence. This application was made under Section 65(c) of the Evidence Act. Under Section 65(c), secondary evidence could be given when the original has been destroyed or lost and cannot be produced. Since the Petitioner made that application, it is for the Petitioner to prove the destruction or the loss for not producing the original documents. Since it is the Petitioner s case that they were already produced, the Petitioner must show when they were produced in Court. That onus lies only on the Petitioner and until that onus is discharged and the Petitioner shows when those documents were produced, they cannot be taken to have proved the loss of the documents and hence the right to lead secondary evidence cannot accrue to it. It is at that stage that the application has been considered by the learned Charity Commissioner in the impugned order. 6.The Petitioner contended that it filed its list of documents on 16.10.2005 whereunder it produced the original Book of the Minutes of the Board of trustees, membership register, forms, previous membership applications and some other documents. These are all enumerated in the list of documents, which was stated to have been submitted on 16.10.2005. The list of documents is shown to be dated 16.10.2005. It had to 4 be proved by the Petitioner that the list dated 16.10.2005 was actually submitted to the Court of the Charity Commissioner on 16.10.2005 itself accompanied by the documents. The learned Charity Commissioner has considered and seen that there was no date of hearing of 16.10.2005. (I am now told by the Advocate of the Petitioner that 16.10.2005 was a Sunday). The learned Charity Commissioner has concluded that the documents in the list dated 16.10.2005 were not brought on record on 16.10.2005. He has also seen that there was no application to file the documents on that day. 7.He has further seen that the membership register, which was marked Exhibit-64, and which was only the original document filed on record, was dated 24.3.2006 and was accordingly signed by the Advocates showing that it was produced and tendered in Court on 24.3.2006 and not on 16.10.2005. No other document is shown to have been produced on that day or on any other day. Therefore, the learned Charity Commissioner has observed that merely from a copy of the list of documents dated 16.10.2005, it could be at the most presumed that the list was prepared in the Advocate s office on that day, but it does not mean that the same was filed on record with the original documents. Consequently, the learned Charity Commissioner has rightly concluded that the Petitioner has not proved the loss of the documents. 5 8.It may be mentioned that reading of the order, which was impugned in the earlier Writ Petition, and which considered the eligibility of certain members, also shows that only xerox copies of certain documents have been produced and the order has been passed, based upon such xerox copies alone. 9.Upon remand, it was for the Petitioner to produce the original documents which were not produced earlier, if it required further evidence to be led. The order of remand in the earlier Writ Petition itself does not show that the Petitioner has sought to produce the original documents even at the stage of arguments. It was only Respondent Nos.1 and 2, who claimed that they produced the original documents at a later stage and were allowed to have the evidence led on the basis of those original documents. Since, they were allowed to lead further evidence based upon their further documents, the Petitioner herein was also allowed to lead further evidence by further documents in its Writ Petition. 10.The application by the Petitioner for secondary evidence is seen to be completely misconceived and in fact, mischievous. The Petitioner has not proved the loss of the documents and hence cannot produce any 6 xerox copy taken out by any mechanical process to lead secondary evidence thereon. 11.The impugned order, therefore, does not suffer from any infirmity. No interference is called for. The Writ Petition is dismissed. Rule is discharged accordingly. 12.No order as to costs. (SMT.ROSHAN DALVI, J.)