1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8602 OF 2009 Sow. Prabha w/o Jagdish Bharati, age: 59 years, Occ: Household, R/o Wale Nagar, Latur, Tq. & District Latur. Petitioner Versus 1 Uttam s/o Dhondiba Thombre, age: 64 years, Occ: Tailor; 2 Sow.Sarojani w/o Uttam Thombre, age: major, Occ: Household; 3 Satish s/o Uttam Thombre, age: major, Occ: service; 4 Sanjay s/o Uttam Thombre, age: major, Occ: service; 5 Ramesh s/o Uttam Thombre, age: major, Occ: service; 6 Vishal s/o Uttam Thombre, age: major, Occ: service; All R/o Wale Nagar, Latur, Tq. And District Latur. Respondents Mr.G.K.Naik Thigale, advocate for the petitioner. Mr. S.P.Urgunde, advocate for Respondents. CORAM: R. K. DESHPANDE, J. DATE : 21 st July, 2010. ORAL JUDGMENT: 2 1 This writ petition challenges the order dated 30.10.2009, passed by 6 th Joint Civil Judge, Junior Division, Latur, in R.C.S. No.513/2005, dismissing the application filed by the plaintiff for permitting him to lead secondary evidence in respect of receipt of payment dated 23.03.2005. 2 The notice in this matter was issued on 17.12.2009 and the proceedings of suit were stayed. In response to the notice, learned Counsel Shri S.P.Urgunde appears for respondents. Learned Counsel for the parties agree that the matter can be disposed of finally at the stage of admission. Hence, Rule, made returnable forthwith and heard finally by consent of learned Counsel for the parties. 3 The trial Court has held that though there is compliance of Section 66 of the Evidence Act, the defendants have denied existence of the document. Hence, the same is not produced on record. The application has been rejected on the ground that unless and until the plaintiff establishes existence of the original document, he cannot take benefit of Section 65 of the Evidence Act i.e. permission for leading secondary evidence. 4 Learned Counsel for the petitioner has relied upon the judgments of this Court in the case of Anil Balasaheb Murde Vs. Adinath Trimbak Bodkhe, reported in 2007 (2) Bom.C.R. (Cri.) 76 and in Writ Petition No. 6267 of 2009, decided by this Court on 08.12.2009. 5 As against the aforesaid judgments, learned Counsel for the respondents placed reliance on the judgments of the Apex Court in the case of Smt. J. Yashoda Vs. Smt. K. Shobha Rani, reported in AIR 2007 SC 1721; and 3 in the case of Ram Suresh Singh Vs. Prabhat Singh alias Chhotu Singh & another, reported in (2009) 6 SCC 681. 6 The trial Court has recorded a finding that unless and until the plaintiff establishes existence of original document, he cannot take benefit of Section 65 of the Evidence Act. Learned Counsel for the petitioner also relied upon the provisions of Section 65 to urge that secondary evidence in respect of existence of document is also permissible. 7 After going through the judgments relied upon by the learned Counsel for the petitioner, it is clear that the judgment of this Court reported in 2007 (2) Bom.C.R. (Cri.) 76 (supra) was on the question of admissibility of photo copy in the evidence. This Court has held that such document is admissible in evidence and secondary evidence in respect thereof could have been permitted to be led. The question involved was not of existence of the document. Another judgment, relied upon by the learned Counsel for the petitioner, delivered by this Court in W. P. No.6267/2009, deals with the case where the party was permitted to lead secondary evidence and writ petition, against which, was dismissed by holding that the copy of the document placed on record can be admitted as secondary evidence. Hence, this judgment is also not applicable to the facts of this case. 8 The Apex Court has laid down in its decision reported in AIR 2007 SC 1721 (supra) that secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. Another judgment of the Apex Court, relied upon by the learned Counsel for the Respondents, is on the same line. 4 9 In view of the finding recorded by the trial Court that unless and until the plaintiff establishes existence of original document, he cannot take benefit of Section 65 of the Evidence Act, cannot be faulted with. The order passed by the trial Court is, therefore, legal and proper and need no interference. 10 Writ Petition is, therefore, dismissed. Rule discharged. Ad interim relief stands vacated. No order as to costs. (R. K. DESHPANDE) JUDGE ******* adb/wp860209