1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.575 OF 2008. Shri Menino Fernandes, r/o H. No.13-A, Biptomola, Quepem, Goa. .. Petitioner. Versus. Smt. Dipika Solanki, r/o H.No.234, (New), Bepquegale, Curchorem, Goa. .. Respondent Mr. Nitin Sardessai with Mr. Deep Shirodkar, Advocates for the Petitioner. Mr. Sudin Usgaonkar with Ms Rajani Kamat, Advocates for the respondent. Coram :- A. P. LAVANDE, J. Date : - 17 th October, 2008. ORAL JUDGMENT : 1. Heard Mr. N. Sardessai, learned Counsel for the petitioner and Mr. Sudin Usgaonkar, learned Counsel for the respondent. 2. On 25th September, 2008, this Court issued notice to the respondent for final disposal of the petition at the admission stage. Hence, Rule. Heard forthwith. 2 3. By this petition, the petitioner challenges the order dated 14.08.2008 passed by the Civil Judge, Senior Division, Quepem in Regular Civil Suit No.38/1996/B, by which the application dated 24.07.2008 filed by the petitioner, has been dismissed. The petitioner is the plaintiff in the above referred suit filed against the respondent / defendant seeking eviction, recovery of possession and mesne profits. 4. Briefly, the facts leading to the filing of the present petition, are as under : Smt. Philomena Fernandes, the wife of the present petitioner, filed the above referred suit seeking recovery of possession of the suit premises and mesne profits. The suit was contested by the defendants. During the pendency of the suit, said Philomena expired and the present petitioner being her only legal representative, was brought on record. It is the case of the petitioner that the relations between him and his deceased wife, were strained and that even a suit for divorce was filed. The original plaintiff, in support of her case, relied upon the following three documents : (i) Agreement of Leave and Licence dated 10.09.1995. (ii) Legal notice dated 20.3.1996 with acknowledgment card. (iii) Reply of defendant dated nil. 3 5. When the matter came up for evidence of the plaintiff, the plaintiff filed an application dated 24.07.2008 seeking to adduce secondary evidence in respect of above referred three documents on the ground that originals of the said documents, were not passed on to him by his wife Philomena and as such he was not in possession of the originals of the said documents. The application was opposed by the defendants and by the impugned order, the Trial Court rejected the application holding that no case was made out by the defendant for leading secondary evidence. The Trial Court held that none of the clauses namely (a) to (g) of Section 65 of Evidence Act, was attracted and as such the plaintiff could not be permitted to lead secondary evidence. According to Mr. Sardessai, learned Counsel for the petitioner / plaintiff, the copies of the above referred three documents were produced at the stage of production of the documents in the suit. This position has not been disputed by Mr. Usgaonkar, learned Counsel appearing for the defendant / respondent. 6. Mr. Sardessai,learned Counsel appearing for the petitioner submitted that the case of the plaintiff comes under clause (c) of Section 65 of the Evidence Act and, therefore, the Trial Court has erred in not permitting the plaintiff from leading secondary evidence. Mr. Sardessai 4 further submitted that in the written statement filed by the defendant, the existence of above referred three documents has not been seriously disputed by the defendant. In support of his submission, the Trial Court ought to have permitted the plaintiff to lead secondary evidence, Mr.Sardessai placed reliance upon following judgments : (i) Bibi Aisha V. Bihas S. S. M. Avaqaf reported in AIR 1969 SC 253. (ii) Sayed Mujawar V. Khatunbi Gani reported in 2000(1) Goa L.T. 268. 7. Per contra, Mr. Usgaonkar, learned Counsel for the defendant / respondent submitted that the Trial Court has not committed any jurisdictional error in rejecting the application filed by the plaintiff seeking permission to lead secondary evidence. According to Mr. Usgaonkar the case of the plaintiff is not covered under Section 65 of the Evidence Act. The learned Counsel further urged that in any case, in so far as document at serial No. (ii) mentioned in paragraph 4 above, since the plaintiff is relying on a copy of notice addressed to the defendant without complying with Section 66 of the Evidence Act, the plaintiff is not entitled to lead secondary evidence in respect of the said document. According to Mr. Usgaonkar the authorities relied upon by Mr.Sardessai, do not support the plaintiff's case, but on the contrary, the authorities relied upon by the Trial Court while passing the impugned 5 order clearly support the stand taken by him. 8. I have considered the submissions made by learned Counsel for the parties and perused the record and the judgments relied upon. Section 65 of the Evidence Act stipulates as to when secondary evidence of the existence, condition, or contents of document can be given. Since Mr. Sardessai has submitted that his case is covered under Section 65 (c), it would be appropriate to quote the relevant provision which reads thus : “ Section 65 : Cases in which secondary evidence relating to documents may be given - Secondary Evidence may be given of the existence, condition, or of document in the following cases :- (a) ......................................................................... (b) ......................................................................... (c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising out from his own default or neglect, produce it in reasonable time ; ” 9. In the present case, the present petitioner has been brought on record as legal representative of his wife Philomena. In the application filed seeking leave to lead secondary evidence, it has been expressly stated that the relations between him and his wife were not 6 cordial and even a suit for divorce was filed. It has been further stated that Philomena never passed on the said documents to him and as such he did not possess the originals of the said documents. In reply, except for bare denial, the defendant has not come out with any specific defence. In this factual background, the question which arises for consideration, is whether the case of the plaintiff is covered by Section 65(c) of the Evidence Act. Under Section 65(c), if a party for any other reason not arising out from his own default or neglect, is not in a position to produce the original documents in reasonable time, can give secondary evidence of the existence, condition, or contents of the said documents. In my considered opinion, the above referred portion of Section 65(c) of the Act, is clearly attracted in the present case. It is the case of the plaintiff that his relations with his wife, were strained and even a suit for divorce was filed and that Philomena had not handed over to him the original documents and as such, he was not in possession of the same. In this factual background, in my considered opinion, the Trial Court ought to have allowed the plaintiff to produce documents at serial No.(i) and (iii) referred to in para 4 above. In so far as document at serial No.(ii) is concerned, Mr. Usgaonkar is right in contending that since the plaintiff is relying upon a copy of the notice addressed to the defendant without complying with Section 66 of the Evidence Act, he is not entitled to lead secondary evidence in respect of 7 said document. Therefore, in my considered opinion, the Trial Court ought to have allowed the plaintiff to lead secondary evidence in respect of the documents at serial No.(i) and (iii) mentioned above. 10. I do not deem it necessary to refer to the authorities cited by Mr. Sardessai, learned Counsel for the petitioner. In so far as the authorities relied upon by the Trial Court are concerned, perusal of the same discloses that the factual situation in both these judgments, is not identical with the facts in the present case. Therefore, the ratio laid down in both these judgments, is not attracted in the present case. 11. There is one more reason why the plaintiff is entitled to lead secondary evidence in respect of documents at serial Nos. (i) and (iii) above. Under Order XIII, Rule 1 of Civil Procedure Code, prior to the 2002 Amendment, the parties or their pleaders were required to produce on or before the settlement of issues, all the documentary evidence of every description in their possession or power on which they intended to rely and which had not already been filed in the Court and all the documents which the Court had ordered to be produced. The Court was also required to receive the documents so produced provided they were accompanied by an accurate list thereof prepared in such form as the High Court directed. As a matter of practice, the Subordinate 8 Courts in Goa, were permitting the parties to file true copies of the originals in possession of the parties before settlement of issues after comparing them with the originals. This practice appears to have been followed in the present case. In this factual background, not permitting the plaintiff to lead secondary evidence in respect of documents at serial Nos. (i) and (iii) above, would cause serious prejudice to him. If the Trial Court were to comply with Order XIII, Rule 1 of Civil Procedure Code, the Court ought to have insisted the original plaintiff to produce the original documents in her possession before settlement of issues. The Trial Court having permitted the original plaintiff to produce copies of the documents, is not justified in not permitting the present petitioner from leading secondary evidence more particularly having regard to the factual background that the petitioner had strained relations with his wife Philomena. This is an additional reason which does not justify the impugned order. 12. In the event the impugned order is not set aside, in so far as documents at serial Nos. (i) and (iii) mentioned above, serious prejudice would be caused to the present petitioner in as much as for not fault of his, he would not be able to place reliance upon the important documents to prove his case. 9 13. In view of the above discussion, I find that the impugned order to the extent it rejects the prayer of plaintiff from leading secondary evidence of documents at serial Nos. (i) and (iii) referred to above, cannot be sustained, and, therefore, is liable to be quashed and set aside and is, accordingly, set aside. In so far as the document at serial No. (ii) is concerned, liberty is given to the petitioner, if he so desires, to take appropriate steps in accordance with law. 14. Rule is made absolute in the aforesaid terms. The petitioner shall pay costs of Rs.2,000/- to the respondent within a period of four weeks. The interim order dated 25.09.2008 stands vacated. The parties shall appear before the Trial Court on 10.11.2008 at 10.00 a.m. A. P. LAVANDE, J. SMA