1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5944 OF 2009 Dilip Dattajirao Avhad .. Petitioner versus Balasaheb Namdev Naik .. Respondent Ms.Manjiri Parasnis for the petitioner. Mr.Rahul Kadam for the respondent. CORAM : A.S.OKA, J. DATE : 24th September 2009. P.C.: . Heard learned counsel appearing for the parties. Considering the narrow controversy involved, notice was issued for final disposal at admission stage. The petitioner is the original plaintiff and the respondent is the original defendant. An application was made by the petitioner at Exhibit 45 seeking permission to lead secondary evidence of Sale Deed dated 18th January 1980 by producing a certified copy thereof. The application was contested by the respondent. By order dated 16th December 2008 the said application came to be rejected. The learned trial Judge observed that the petitioner has not established that he has followed the procedure prescribed by section 66 of the Indian Evidence Act, 1872 and straightaway an application for seeking permission to lead secondary evidence has been made. An application at Exhibit 48 was made for review of the said order by pointing out that the original Sale Deed was in the custody of the purchaser 2 Ashok Sopan Khade. It is pointed out that the said Ashok Khade was no more and his father had filed an affidavit-in-lieu of examination-in-chief in which the father stated that he has misplaced the original Sale Deed. The application for review has been rejected by the impugned order by observing that notice to produce as required by section 66 of the Act of 1872 was not served to the said Sopan (father of Ashok) and therefore the condition precedent for grant of permission to lead secondary evidence was not complied with. 2. The learned counsel appearing for the petitioner invited my attention to the affidavit-in-lieu of evidence of the said Sopan Krishna Khade in which he has stated that he was in possession of the original Sale Deed and he has misplaced the said Sale Deed. She, therefore, submitted that the Court below has committed an error by rejecting the applications filed by the petitioner. The learned counsel appearing for the respondent placed reliance on the decision of the Apex Court in the case of State of Rajasthan Vs. Khemraj & Ors (AIR 2000 Supreme Court 1759). He submitted that there is no affidavit in support of the application filed by the petitioner and unless the application is supported by an affidavit, the same cannot be treated as a valid application under section 65 of the said Act of 1872. He, therefore, submitted that the Court below was right in rejecting the application. 3. I have carefully considered the submissions. It will be necessary to refer to the averments made in the application at Exhibit 45. In the said 3 application, the petitioner came out with a case that the original Sale Deed was in custody of the purchaser Ashok Sopan Khade who was no more. The application also discloses that the petitioner’s witness Sopan (father of Ashok) had made an application at Exhibit 40 seeking permission to lead secondary evidence of the Sale Deed. In reply filed to Exhibit 45, the respondent has not disputed the factual assertion that the original Sale Deed was in custody of deceased Ashok Khade. The application was rejected by the trial Court only on the ground that procedure prescribed by section 66 of the said Act of 1872 was not followed. In the application for review at Exhibit 48 the petitioner specifically stated that the Sale Deed was in the custody of deceased Ashok Khade. His father who was examined as a witness stated he has misplaced the original Sale Deed. A reply is filed to the said application at Exhibit 48 by the respondent in which the respondent himself came out with the case that the custody of the original Sale Deed was with the said witness Sopan Khade. In fact the respondent stated in the reply that the said Sopan in his evidence stated that he has misplaced the original Sale Deed. The specific contention raised by the respondent is that notice to produce under section 66 of the said Act of 1872 ought to have been given to the said Sopan and that is the only ground on which the application for review has been rejected. 4. Thus, in the present case, there is no dispute between the parties that the original Sale Deed was in the custody of said Sopan. There is no dispute that the said Sopan stepped into the witness box and deposed that he has 4 misplaced the original Sale Deed. It is the case of the respondent that the said Sopan was in possession of the original Sale Deed. Therefore, this was a fit case where the Court ought to have granted permission to lead secondary evidence of the said Sale Deed by production of a certified copy of the Sale Deed. As the fact that the original Sale Deed was handed over to Sopan and that he has misplaced it is admitted, the defect of not filing affidavit in support will not be fatal. 5. Hence, the petition must succeed. As far as the question of the proof of execution and the proof of contents of the document is concerned, the same will have to be considered by the trial Court on the basis of evidence on record. 6. Hence, I pass the following order: : O R D E R : (a) The impugned orders are quashed and set aside. (b) The application at Exhibit 45 and 48 are allowed. (c) The petitioner is permitted to lead secondary evidence of Sale Deed dated 18th January 1980 by production of the certified copy of the Sale Deed which is already on record of the trial Court. (d) Writ petition is allowed accordingly. (e) Hearing of the suit is expedited. (A.S.OKA,J)