1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 797 OF 2010 (Mitesh Gotulal Bhangadiya & Anr. vs. Shri Binodkumar Sitaram Chhawchhariya & Ors.) with WRIT PETITION NO. 996 OF 2010 (Shri Umedmal Neerajmal Kothari & Anr. vs. Shri Binodkumar Sitaram Chhawchhariya & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 21, 2010. Heard Shri Bhangde, learned counsel for the petitioners, Shri Khapre and Shri Vaidya, learned counsel for respondent No. 1 and Shri Shelat for respondents No. 2 & 3 in writ petition No. 797 of 2010 and Shri Shelat, learned counsel for the petitioners, Shri Khapre and Shri Vaidya, learned counsel for respondent No.1 and Shri Bhangde, learned counsel for respondents No.2 & 3 in Writ Petition No. 996 of 2010. The defendants in the suit for specific performance instituted by Respondent No. 1 are challenging the order dated 04.02.2010 passed by 6th Joint Civil Judge, Senior Division, Nagpur, below Exh. 76, permitting Respondent No.1 to adduce secondary evidence in respect of suit agreement dated 19.07.2004. Shri Shelat as also Shri Bhangde, learned counsel for respective petitioners have contended that the alleged photo stat copy of agreement dated 19.07.2004 itself is doubtful document and as the same 2 is insufficiently stamped and stamp paper is not purchased in the name of Respondent No. 1 – plaintiff or his alleged vendor, the document is inadmissible in evidence. They contend that in view of this clear position in law, the application to lead secondary evidence on the strength of that photo stat copy could not have been given. The reliance is being placed on the judgment of the Hon'ble Apex Court in the case of Jupudi Kesava Rao vs. Pulavarthi Venkata Subbarao & Ors., 1971(1) SCC 545, the judgment learned Single Judge of this Court in the case of KBC Pictures vs. A.R. Murgadoss, reported at 2009 (2) All M.R. 108 and Full Bench of this Court in the case of Hemendra vs. Subodh, reported at 2008 (6) Mh. L.J. 886. It is further contended that the finding that loss of alleged original is established, has been recorded at this stage only when the cross examination of respondent No.1's witness i.e. P.W. 2 is still to be completed. The learned counsel further argues that neither loss of original nor existence of original is still established on record. Shri Khapre and Shri Vaidya, learned counsel support the impugned order. They place reliance upon Division Bench of this Court in the case of Naginbhai P. Desai vs. Taraben A. Sheth, reported at AIR 2003 Bom. 192 and Full Bench of this Court in the case of Hemendra vs. Subodh, (supra) in support of their contentions. They urge that during examination in chief 3 of P.W. 2, the occasion to file application seeking leave to lead secondary evidence arose and the consideration of that application and impugned order clearly show that the application of mind by the trial Court is only to that extent. According to them, the issue of admissibility of photo stat copy, issue of loss of original or issue about existence of original are still open and can be gone into at appropriate stage by the trial Court. With the assistance of all learned counsel, I have perused papers. In para 11, the trial Court has found whether photo stat copy tendered as secondary evidence can be impounded or not and whether it is admissible or inadmissible in evidence are the circumstances which can be decided at appropriate stage. Though parties have invited my attention to various judgments mentioned above, the Full Bench of this Court has in para 92 while recording its answer to question No. 4 found that objection to document sought to be produced relating to deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit. The Hon'ble Full Bench has further observed that objection to document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case. The judgment of the Hon'ble Apex Court in Jupudi Kesava Rao vs. Pulavarthi Venkata Subbarao & Ors., (supra) shows that in para 8, the 4 observations made by the High Court are reproduced and it is noted that the documents or secondary evidence inadmissible in evidence cannot be received for any purpose. The Full Bench of this Court was not considering the issue falling under Section 65 of the Indian Evidence Act but then as already noted above, the application has been moved when examination-in-chief of PW-2 was going on. The findings recorded by the trial Court are only to enable it to continue further with that examination-in-chief and trial Court has yet not exhibited the alleged photo stat copy. The conclusions in para 11 clearly show that the relevant issues are kept open for adjudication by that Court. At this stage, there is nothing before this Court to show that the trial Court is not going by the law of the land. The finding about loss of original or existence of original is also for said purpose and various arguments advanced before me to show that the evidence demonstrates that such original was never in existence and the story of loss is fabricated one, can be considered by the trial Court at appropriate stage. I, therefore, find that the challenge as raised at this stage is misconceived. Writ petitions are, therefore, dismissed. However, there shall be no order as to costs. The parties jointly inform that suit has been made time bound and time expires on 30.04.2010. 5 Hence by consent, time is extended up to 31st July 2010. JUDGE *GS.