1 wp 7039.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7039 OF 2011 Taherkhan Wahedkhan and another .. Petitioners Versus Nandlal Champalal Bhoma and others .. Respondents Shri A. D. Kasliwal, Advocate for Petitioners. CORAM : S. V. GANGAPURWALA, J. DATE : 29TH SEPTEMBER, 2011. PER COURT : . The petitioners are the original defendant Nos. 3 and 4. The respondent Nos. 1 and 2 have filed a suit for specific performance of contract in respect of agreement of sale allegedly dated 16.01.2010. During the pendency of suit, present respondent Nos. 1 and 2 filed an application Exhibit 58 seeking permission to adduce secondary evidence. The said application is allowed. Aggrieved thereby the defendant Nos. 3 and 4 have filed present petition. 2. Shri A. D. Kasliwal, the learned counsel for petitioners 2 wp 7039.11 submits that, unless and until a party satisfies about the existence of the document and the circumstances necessitating to adduce secondary evidence, no permission can be granted. The learned counsel contends that the present defendant Nos. 3 and 4 have denied the existence of said document. So also have denied that the said documents are in possession and it is highly improbable that the defendant No. 4 would hand over the said document to the plaintiffs. Unless and until the plaintiffs cogently establishes the existence of said document, the Court cannot grant permission for adducing the secondary evidence. Even the non production of original is to be accounted. The learned counsel relies on the judgment of the Apex Court in a case of H. Siddiqui (dead) by LRs. Vs. A. Ramalingam reported in 2011(4) Mh. L. J. 88. The learned counsel further contends that, though the say was filed to the application filed by the plaintiffs directing the defendant No. 4 to produce the original agreement, on the day when the say was filed the defendant had subsequently filed pursis intimating the Court that no such documents as annexed with the list Exhibit 38 are in his possession and power and the said documents were also denied. As such, the learned counsel contends that the said say would not be relevant and that would not absolve the plaintiffs 3 wp 7039.11 from establishing the existence of the document. 3. The jurisdiction of this Court under Article 227 of the Constitution of India is also an equitable jurisdiction. The conduct of the party is relevant. Initially the plaintiffs filed an application seeking directions against the present defendant No. 4 to produce the original of the documents annexed along with list Exhibit 38. The defendant No. 4 filed his say which reads as under : "Sir, The plaintiff is aware of all the facts and documents since beginning the application could have been filed earlier. The conduct shows the delaying tactics. The xerox copies are on record on xerox copies evidence can be laid by praying for secondary evidence if any. The defendant has no objection for secondary evidence, the application has no substance. The affidavit cannot be held up and filing of this application cannot be ground for holding affidavit of evidence, hence be rejected. Sd/- 22.7" 4. In view of the same the application of the plaintiffs was rejected. Thereafter, the plaintiffs filed application for adducing 4 wp 7039.11 secondary evidence. The Court has allowed the same. Though in strict sence the existence of the document may not have been established by the plaintiffs, but still say filed by the defendant No. 4 earlier will also have to be taken into consideration. The defendant No. 4 made the plaintiffs to believe that he can adduce the secondary evidence of those documents. In the light of that the said application would be required to be considered. 5. Even otherwise by allowing the secondary evidence, it would not tantamount to proof of the document. The responsibility of the plaintiffs would not be absolved of establishing the existence of the said document, so also its genuineness and the contents. 6. The conduct of the defendant No. 4 by virtue of the say filed earlier as referred supra does not deserve any indulgence of this Court in its writ jurisdiction under Article 227 of the Constitution of India. In the light of above the writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11