AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2482 OF 2007 PETITION NO.2482 OF 2007 PETITION NO.2482 OF 2007 Shridhar Bapu Bille & Anr. ...Petitioners Versus. Madhukar Baburao Katkar & Ors. ...Respondents Shri S.V.Sadavarte for the Petitioners. Shri N.J.Patil for Respondent No.2. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 02nd May, 2008. : 02nd May, 2008. : 02nd May, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard advocate for the petitioners and the advocate for the second respondent. The notice of the first respondent has been duly served.The first and second respondents are the original plaintiffs. Considering the controversy involved in the petition, the third respondent is not a necessary party. On 17th August,2007 this Court has already issued notice for final disposal at admission stage. 2. The petitioners are original defendant Nos.1 and 2 in a suit filed by the first and second respondents. The suit was filed for declaration as well as for claiming right of premption. 3. An application was made by the present petitioners at Exhibit 52 praying for production of certified copies of Sale Deeds dated 06th February, 1971 : 2 : 2 : 2 : and 04th October, 1972. The prayer in the said application was that the said documents are admissible in evidence being 30 years old documents and therefore the said documents be marked as exhibits. By order dated 20th September, 2006 the said application at Exhibit 52 was rejected by the trial Court by holding that unless the execution of the said document is proved, the same cannot be exhibited. 4. After recording of the evidence of parties was completed, an application was made at Exhibit 54 by the petitioners pointing out that though the aforesaid Sale Deeds were already produced alongwith Exhibit 52 and 53, a formal permission was not sought for production of those documents. A prayer was made seeking permission to produce the said documents and to exhibit the said documents in evidence. The said application has been rejected by the impugned order dated 11th January, 2007. The learned trial Judge observed that earlier application at Exhibit 52 was rejected which contained the same prayer which is made in Exhibit 54. 5. The learned advocate for the petitioners states that the petitioners do not desire to re-open the trial by leading further oral evidence. He, however, submitted that production of the documents which were already filed on record be formally allowed as the said : 3 : 3 : 3 : documents are already proved in evidence. 6. The learned advocate for the second respondent submitted that in view of rejection of application at Exhibit 52, the present application at Exhibit 54 was not maintainable. He submitted that prayer for exhibiting the said documents cannot be granted as the documents have not been duly proved. 7. I have carefully considered the submissions. The impugned order dated 11th January, 2007 as well as averments made in applications at Exhibit 54 and 52 show that the documents in respect of which a permission was sought to produce were already on record. The said documents were already filed on record of the suit. The earlier application was not for seeking permission produce documents but was for seeking a direction that the said two documents be exhibited. The said prayer was rejected on the ground that oral evidence was not adduced and unless the said documents were proved, the same cannot be exhibited. The first part of the prayer made in application at Exhibit 54 is for seeking formal permission to produce the said documents which are already placed on record earlier. It is obvious that as documents were already on record, formal permission ought to have been granted by the trial Court. : 4 : 4 : 4 : 8. The advocate for the petitioners has made a statement that the petitioners do not desire to lead any further oral evidence. Whether the said documents are duly proved and whether the said documents are admissible in evidence are the issues which will have to be decided by the learned Judge while finally deciding the suit. The learned Judge will have to also decide the issue of applicability of section 90 of the Indian Evidence Act, 1972. 9. Hence, I pass the following order: (i) The impugned order dated 11th January, 2007 passed below Exhibit 54 is set aside. The said application is allowed to the extent to which a prayer was made for seeking permission to produce the documents. (ii) While deciding the suit finally, the trial Court will decide the question whether the said two documents are duly proved and/or whether the said documents are admissible in evidence. The Court will also consider the question whether the section 90 of the Evidence Act, 1872 will apply to the said documents. : 5 : 5 : 5 : (iii) All contentions of the parties as regards proof and admissibility of the said documents in evidence are expressly kept open. (iv) Rule is partly made absolute in above terms with no orders as to costs. JUDGE JUDGE JUDGE