1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7858/2008 Ramchandra S.Mate Petitioner Vs. Narayan B.Tupe & Ors. Respondents Mr.S.S.Kanetkar for petitioner Mr.V.Z.Kankaria i/b Mr.Rahul Motkari and Mr.S.R.Waghmare for Res.1 to 3 CORAM: MRS.MRIDULA BHATKAR,J. DATE : 15th JANUARY,2010 P.C. . This writ petition is filed against the order dated 17/9/2008 passed by II Jt.Civil Judge,Sr.Division ,Pune rejecting the application filed by the petitioner i.e. the original plaintiff praying to adduce secondary evidence i.e. photo copy of receipt of earnest money (Visar Pawati ) dated 13/5/1989 against the transaction between the original plaintiff and the defendant. Learned counsel appearing for the petitioner submits that the original receipt was handed over to the counsel who had filed the suit. Then thereafter the papers were handed over to some other counsel and again there was change of the counsel and in between original document was lost and therefore, at the time of the evidence the petitioner was not in possession of the original receipt. Learned 2 counsel appearing for the respondents submits that the date of receipt whether it is of 1989 or 1985 is disputed. So also the petitioner ought to have given affidavit to that effect at the time of recording of his evidence. Today the petitioner/original plaintiff has already submitted the pursis of closure of evidence and therefore the said order passed by learned Judge is correct. 2] While entertaining the application for leading secondary evidence learned Judge has to consider the admissibility of the evidence. If on that point satisfactory explanation is putforth by the party then the opportunity to tender the documentary evidence is to be given as it helps the Court to arrive at the proper conclusion. 3] In the present matter though the pursis of the closure of the evidence is submitted by the petitioner yet the defendant has not stepped into the witness box and considering the transaction between the parties and the nature of the other evidence adduced before the Court the order of learned Judge needs to be interferred . Learned counsel appearing for the defendants submits that he should be given opportunity to cross examine the 3 plaintiff on this document and evidence recorded in vernacular language (Marathi ) being authenticated is to be considered by the Trial Judge while appreciating this document. 4] By this order the petitioner is allowed to adduce evidence of impugned receipt of earnest money so this decision is on the point of admissibility of the said document the Trial Judge has to assess and make scrutiny of said document independently as per the rules of evidence. The petitioner is allowed to tender the evidence only on limited point i.e.on impugned document and an opportunity should be given to the defendants to cross examine . The petition is allowed and disposed of accordingly. (MRS.MRIDULA BHATKAR,J.)