1 W. P. No. 8235/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8235 OF 2009 1. Rafiuddin S/o Mashiuddin, Age : 44 Years, Occu. : Business & Agril., R/o Khultabad, Tq. & Dist. Aurangabad. 2. Bilkhis Begum W/o Rafiuddin, Age : 38 Years, Occu. : Household & Agril., R/o As above. .. .. Petitioners Versus 1. Alimunnisa W/o Hasan Khan, Age : 60 Years, Occu. : Agril., R/o Kamal Mohalla, Khultabad, Dist. Aurangabad. 2. Subhan Khan S/o Hasankhan, Age : 38 Years, Occu. : Agriculture, R/o As above. 3. Nawaz Khan S/o Hasan Khan, Age : 35 Years, Occu. : Agriculture, R/o As above. 4. Amjad Khan S/o Hasan Khan, Age : 30 Years, Occu. : Agriculture, R/o As above. 2 W. P. No. 8235/2009 5. Fizor S/o Sk. Hussain, Age : 36 Years, Occu. : Agril., R/o Ellora, Tq. Khultabad, Dist. Aurangabad. 6. Afroz S/o Sk. Hussain, Age : 35 Years, Occu. : Agril., R/o As above. 7. Gulam Khan S/o Chhote Khan, Age : 62 Years, Occu. : Retired from Service, R/o Wakarkhana area, Khultabad, Dist. Aurangabad. 8. Ayub Khan S/o Rasul Khan, Age : 45 Years, Occu. : Driver, R/o Ellora, Tq. Khultabad, Dist. Aurangabad. 9. Chand Khan S/o Aziz Khan, Age : 60 Years, Occu. : Retired from Service, R/o Near Sahuji Galli,, Khultabad, Dist. Aurangabad. 10. Feroz Khan S/o Aziz Khan, Age : 42 Years, Occu. : Driver, R/o Kaman Mohalla, Khultabad, Dist. Aurangabad. 11. Wahed Khan S/o Aziz Khan, Age : 46 Years, Occu. : Driver, R/o Kaman Mohalla, Khultabad, Dist. Aurangabad. 3 W. P. No. 8235/2009 12. Ibrahim Khan S/o Rahim Khan, Age : 45 Years, Occu. : Service, R/o Phulambri, Dist. Aurangabad. 13. Zubedabee W/o Sk. Usman, Age : 65 Years, Occu. : Agriculture, R/o Ellora, Tq. Khultabad, District Aurangabad. 14. Abubakar S/o Hazi Abdul Quadar, Age : 55 Years, Occu. : Business, R/o Bandra, Mumbai. .. .. Respondents Shri A. D. Kasaliwad, Advocate for Petitioners. Mrs. A. N. Ansari, Advocate for Respondent Nos. 1 to 4. Respondent Nos. 5 to 14 served. CORAM : A. A. SAYED, J. DATE : 07TH DECEMBER, 2010. ORAL JUDGMENT : . Rule. Rule made returnable forthwith. With the consent of learned counsel for parties this petition is heard finally at the stage of admission. 2. The order dated 13.11.2009 passed by the VIIIth Joint Civil Judge Junior Division, Aurangabad is subjected to challenge in the present writ petition. By that order the application of 4 W. P. No. 8235/2009 petitioners/original plaintiffs to allow original sale deed dated 06.07.1998 to be called from Sub Registrar, Collector Office Compound, Aurangabad and in the alternative for permission to lead secondary evidence by accepting certified copies on record as secondary evidence, came to be rejected. 3. The impugned order though states that the certified copy could solve the problem, it goes on record that, if the plaintiff at all wants to file the original, he can collect it and file it on record. The application accordingly came to be rejected. 4. In my view the course adopted by the trial Court was not proper. The petitioner/original plaintiff cannot be kept guessing, whether the certified copy of the document produced by him is to be accepted by the Court and will be marked in accordance with law, in absence of the primary evidence ( i. e. the original document). Neither can he expected to wait to produce the original (which is not in his custody) till the authorities deliver the original document to him. The Trial Court ought to have either issued witness summons to the Sub Registrar, Aurangabad to produce the original document or granted permission to the petitioner to lead secondary evidence and 5 W. P. No. 8235/2009 ought not to have rejected the application of the petitioner altogether. 5. In the circumstances the impugned order is set aside. The learned counsel for the petitioner states that the petitioner be allowed to summon the Sub Registrar to cause production of the original document. It is accordingly directed that, Trial Court shall issue necessary witness summons to the Sub Registrar, Aurangabad for causing production of the original sale deed and the application of the petitioner shall be deemed to have been allowed to that extent. 6. Rule is made absolute in the aforesaid terms. No order as to costs. [ A. A. SAYED, J.] bsb/Dec. 10