1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4010 OF 2008 WRIT PETITION NO. 4010 OF 2008 WRIT PETITION NO. 4010 OF 2008 Mohammed Pasha Abdul Desai ... Petitioner (Org.Plaintiff) Versus Smt. Dhondubai Dadu Daware & Ors. Respondents (Org.Defendants) Mr. S.S.Patwardhan, Advocate, for the petitioner. Mr. S.M.Mirajkar, Advocate, for the respondents. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 24th November, 2008. DATE: 24th November, 2008. DATE: 24th November, 2008. P.C P.C P.C 1. Heard the learned Counsel for the parties. 2. To state in brief, the petitioner before this Court is the original plaintiff and the respondents are the defendants. The admitted facts are that in the year 2 1965, the plaintiff had executed the sale deed in respect of the immovable property. However, according to the plaintiff, in fact, it was a mortgage by conditional sale and the defendants had executed an agreement on 21.9,.1966 for reconveyance of the property in favour of the plaintiff on repayment of the amount of Rs.12,000/-. Regular Civil Suit No.93 of 2001 was filed by the plaintiff in the Court of Civil Judge, Junior Division, Kagal for specific performance of the agreement for reconveyance of the property. The defendants filed written statement and denied the contention about the agreement for reconveyance. According to them, it was an out and out sale and there was no question of reconveyance. The defendants had made an application before the trial Court seeking direction to the plaintiff to produce the original document of agreement of reconveyance. The plaintiff replied to that application contending that on the basis of the said agreement, entry was taken in the column of ‘other rights’ in 7 x 12 record by the Talathi. However, according to him, the original document was not returned to him by the Talathi and, therefore, it was not with him. He contended that the said original document had been lost and its copy or duplicate was also not available with him. In view of this reply, the trial Court disposed of the application filed by the 3 defendants by order dated 28.11.2006. While disposing of that application, the trial Court observed that in view of the positive averment in respect of non-possession of the document, the plaintiff is not entitled to produce the same at any subsequent stage. On 25.4.2007, the plaintiff filed an application with an affidavit contending that the original agreement of reconveyance was found with his brother-in-law Nazir Khan and he sought permission to produce the same. That application was objected to and the learned trial Court rejected the same by order dated 22.6.2007 mainly on the ground that the plaintiff had made a specific statement on earlier occasion that the original document was lost and he was precluded from producing the original document or to lead additional evidence. Thereafter, the plaintiff made an application seeking leave to lead evidence in respect of the contents of the said agreement. That application was also rejected. In such circumstances, the petitioner has filed this petition seeking to set aside all the above orders and direction to the trial Court to permit the petitioner to produce the original document and to lead evidence in respect of the same. 3. The learned Counsel for the respondents strongly contested the petition. According to him, in 4 view of the conduct of the petitioner in making a clear statement before the trial Court that original document was given to Talathi and was not returned and that he could not be allowed to produce the original document on the ground that it was found somewhere else. According to him, this conduct shows that the document is not genuine and, therefore, the trial Court was right in rejecting the application. 4. After hearing the learned Counsel for both parties, I find that the alleged document is about 40 years old and is on a plain paper and is not a registered document. It is true that the plaintiff was expected to produce the original document before the trial Court along with the plaint or at least after filing of the written statement by the defendants. The defendants called upon the plaintiff to produce the original document before the Court and at that time the plaintiff made a statement that the original document was given to Talathi and it was not returned to him. According to him, as it was lost, he was unable to produce the original or its copy. It is material to note that in that reply, he had specifically stated that on the basis of that document, entry was taken in the column of other rights in the 7 x 12 record. In view of these circumstances, he was unable to produce the 5 original document. However, he contends that later on the said document was found in possession of his brother-in-law Nazir Khan and therefore he sought permission to produce that document. Under the provisions of the Evidence Act, if the original document is lost or cannot be traced out with due diligence, a party can be allowed to lead secondary evidence. If the original document could not be found, the plaintiff would be entitled to produce secondary evidence subject to his proving loss of document. However, the plaintiff claims that original document itself was traced out from his brother-in-law, therefore he wanted to produce the same. I fail to understand how the right of the plaintiff to produce original document can be forfeited permanently. Therefore, in my considered opinion, the trial Court was wrong in rejecting the prayer to produce the original document after it was found. The trial Court was also wrong in refusing permission to the plaintiff to lead evidence on the basis of that document. By refusing to produce the original document the trial Court practically closed the door for the plaintiff to lead evidence in support of his claim. It was highly improper. Taking into consideration all these circumstances, in my considered opinion, the following order would meet the ends of justice:- 6 5. The petition is allowed. The trial Court is hereby directed to permit the plaintiff to produce the original document and to lead necessary evidence about the same. The question of genuineness of that document is open which needs to be decided by the trial court on the basis of the evidence which will be produced by the concerned parties. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)