1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 659/2009 (Chotabhai Shivabhai Patel & others VERSUS Chandubhai Shivabhai Patel) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri F.T. Mirza, counsel for the petitioners. Shri Satish Tatwawadi & A.M. Kukday, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : MAY 6, 2009. By this petition, the petitioners impugn the order passed by the 3rd Joint Civil Judge (Junior Division), Yavatmal on 16.01.2009 allowing an application filed by the respondent for permission to tender additional but secondary evidence. The petitioners are the original defendants. A suit was filed by the plaintiff for a declaration that the notice issued by the defendants on 16.10.2006 showing their intention to dissolve the partnership firm was illegal and not binding as it did not amount to a notice of the dissolution of a firm M/s Bapulal Shivabhai. The parties tendered the evidence and the matter was listed before the Court for arguments. The learned counsel for the parties had also partly argued the matter before the trial Court on merits. 2 At that juncture, the plaintiff filed an application for permission to lead additional but secondary evidence. It was the case of the plaintiff that the plaintiff and the defendants are the partners of a registered firm and since it was necessary to peruse the clauses in the partnership deed for effectively deciding the controversy between the parties and the original was in the possession of the defendants, it was necessary for the trial Court to permit the plaintiff to lead secondary evidence. It was the case of the plaintiff that the original partnership deed was in the possession of the defendants and the defendants had flatly refused to produce it in spite of issuance of notice to produce the same. The plaintiff had also issued a notice at Exh.61 asking the defendants to admit the partnership deed. The defendants refused to admit it. According to the plaintiff, the defendants were bound to produce the partnership deed dated 01.04.1992 before the Court and since they were not desirous of producing the same, the plaintiff sought permission to lead secondary evidence. The application was strongly opposed by the petitioners/defendants. It was the case of the defendants that the application was filed belatedly and the xerox copy of the 3 partnership deed also could not have been tendered in secondary evidence as the same could not have been made admissible in evidence. The trial Court, however, by the impugned order dated 16.01.2009, allowed the application subject to the costs of Rs.600/-. The plaintiff was permitted to lead secondary evidence in regard to Article ‘A’. The order dated 16.01.2009 is impugned in the instant petition. Shri F.T. Mirza, the learned counsel for the petitioners, submitted that the trial Court committed a serious error in allowing the application at the fag end of the trial, when the matter was fixed before the Court for arguments. The learned counsel for the petitioners submitted that the respondent had not shown any sufficient cause for not filing an application for tendering secondary evidence at an earlier point of time. The learned counsel for the petitioners then relied on the provisions of Section 65(f) of the Evidence Act, 1872 to canvass that since Section 65(f) was applicable to the facts of the case and since the plaintiff could have obtained a certified copy of the partnership deed, the Court was not justified in permitting the plaintiff to lead secondary evidence in regard to Article ‘A’, which was a xerox copy of the partnership deed. 4 Shri Tatwawadi, the learned counsel for the respondent, however, supported the order passed by the trial Court on 16.01.2009 and submitted that the document was extremely necessary for effectively deciding the controversy between the parties. The learned counsel for the respondent then submitted that the existence of the said document was also admitted by the defendants in the notice dated 16.10.2006 and the clauses in the agreement would have thrown a lot of light on the controversy involved in the suit. The learned counsel for the respondent then submitted that the mere applicability of the provisions of Section 65(f) of the Evidence Act to the facts of a particular case, would not exclude the provisions of Section 65(a) of the Evidence Act. According to the learned counsel for the respondent, in case, a case falls under Clause (a) of Section 65, tendering of secondary evidence would be permitted though the case may also fall under Clause (f) of Section 65 of the Act. The learned counsel for the respondent relied on the decision reported in AIR 1969 SC 253 to substantiate this submission. The learned counsel for the respondent also relied on a decision reported in 2007(2) Mh.L.J. 406 to substantiate the submission that the admissibility or otherwise of a document could be considered 5 at a later point of time and the Court has to deal with the limited question whether a party should be permitted to tender secondary evidence or not while considering an application for permission to tender secondary evidence. The learned counsel for the respondent sought for the dismissal of the writ petition. I have considered the submissions made on behalf of the parties and have perused the pleadings of the parties, the application for permission to lead secondary evidence as also the impugned order dated 16.01.2009. On a perusal of the pleadings and the order dated 16.01.2009, it is clear that the trial Court did not commit any error whatsoever in allowing the application filed by the plaintiff for permission to lead secondary evidence in regard to Article ‘A’. It is apparent from the pleadings of the parties and the controversy involved in the suit that the perusal of the document was extremely necessary for effectively deciding the controversy between the parties. The trial Court has rightly observed that the defendants had admitted the said document in the notice dated 16.10.2006. Merely because an application to tender additional evidence or to tender secondary evidence is filed at a belated stage, the same cannot be dismissed solely on that ground. The 6 Hon’ble Supreme Court has held in the decision reported in AIR 1969 SC 253 that under Section 65(a) of the Evidence Act, secondary evidence may be given of the existence, or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, and when after the notice mentioned in Section 66, such person does not produce it. The Court further went on to add that where the case falls under Section 65(a), any secondary evidence of the contents of the document is admissible though the case may also fall under Clause (f). The Court further added that Clause (a) is not controlled by Clause (f) of Section 65 of the Evidence Act. The other decision reported in 2007(2) Mh.L.J. 406 and relied on by the counsel for the respondent further supports the case of the respondent. The impugned order passed by the trial Court on 16.01.2009 does not suffer from any jurisdictional error and it appears from the facts and circumstances of the case that the trial Court rightly permitted the respondent to tender secondary evidence in respect of Article ‘A’ in view of the fact that the said document was bound to throw some light on the real controversy involved int he case. 7 In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE