1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6885/2009 KANCHAN NARENDRANATH KHARGHARATE V/S INDUMATI NAGNATH WAGH ... Smt. S.G. Chincholkar, Advocate for petitioner , Shri Suhas B.Rohile, Advocate for respondent 1, Shri Manish Navandar, Advocate for respondents 2 and 3. ... CORAM : S.B.DESHMUKH,J. Dated : 5.2.2010 PER COURT :- 1. Heard respective counsel. 2. Petitioner takes an exception to the judgment and order passed by the learned Joint Civil Judge S.D.Nanded dt. 6.8.2009 below Exhibit 19 in RCS No.414 of 2008. The suit was filed on 25.8.2008. 3. Petitioner is the plaintiff. In the suit, a decree of declaration is sought that the plaintiff is legally wedded wife of deceased Narendranath and entitled to all benefits arising out his services. A declaration is also sought that defendant no.1 is his divorced wife w.e.f 1.7.1994. A decree of perpetual injunction is also sought against 2 respondents 2 and 3 from releasing any amounts of retiral benefits in favour of respondent No.1. Last prayer is for decree of the cancellation of succession certificate granted in favour of respondent No.1 in Misc. Civil Appeal No.16 of 2007. 4. It is not in dispute that during pendency of the suit in the trial Court, the petitioner had filed an application Exhibit 19. In this application, paragraph No.2, it has been pleaded that the petitioner had applied for summons for production of original document bearing No. 35187 dt. 3.10.1998 from the custody of S.G.G.M. Hospital, Nanded. The R.M.O. of the said Hospital, replied in writing, that the document called for was destroyed in view of the Government directives, it being old document beyond the period of ten years. This communication produced before the trial Court by R.M.O. is at Exhibit 61. Referring to this, the petitioner has further pleaded in paragraph No.3 that she has produced on record photo-state copy of the document in question. Prayer made is that in the circumstances and in view of the provisions of section 65 of the Indian Evidence Act, permission be granted to lead secondary evidence in favour of the petitioner. Application is dated 24.7.2009. This application was rejected by the trial Court. Said order is impugned in this Writ Petition. 5. A short question is involved in the case on hand. Photo-state copy of the document is annexed with this writ petition at page 23. It is 3 titled as “Birth Certificate” dated 30.3.2000. It has been certified that a child; namely; Suhasini took birth on 4.10.1998 in SGGM Hospital, Nanded. It appears that this certificate is signed by the Health Officer and B & D Registrar of Nanded Waghala Municipal Corporation, Nanded. The photo- state copy of the said document is produced in the trial Court. Learned trial Judge rejected the application for adducing the secondary evidence holding that the document in question is neither certified copy nor true copy of the original. 6. It is appropriate to refer to few provisions of Indian Evidence Act. Chapter V of the Indian Evidence Act is titled as "Of Documentary Evidence". Section 62 provides that primary evidence means the document itself produced for the inspection of the Court. Section 63 specifies the secondary evidence. Sub-section (1) of section 63 provides that the secondary evidence means and includes cerrtified copies given under the provisions hereinafter contained. Sub-section (2) further provides that copies made from the original by mechanical processes, which in themselves ensure the accuracy of the copy, and copies compared with such copies. We have no concern with further sub-sections of Section 63 in the case on hand. 7. Expression "certified copy" was considered by the Supreme Court in the matter of Kalyansing Vs. Choti [AIR 1990 SC 396], wherein, it has been held that when the document is registered, ordinary copy is not 4 admissible as a secondary evidence. Only certified copy of the registered copy is to be admitted as secondary evidence in absence of the original deed. In the case on hand, indisputably, document in question i.e. birth certificate, copy of which is on record at page No.23, is not the document registered with the Sub-Registrar. We are concerned with the provisions laid down under section 65 of the said Act, in the case on hand, which is titled as "Cases in which secondary evidence relating to documents may be given." Clause (c) of said Section reads that, (secondary evidence may be given of the existence, condition, or contents of a document in the following cases ) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. (Emphasis supplied). 8. In the case on hand, letter of R.M.O. which is on record, in clear terms conveyed the Court that the original document is destroyed since it was beyond the period of ten years, as per the Government directives. There is no suspicion about the destruction of the document. Such are the eventualities occurring in functioning of the Government offices. That is the reason why the provision laid down under section 65 of the said Act has been brought in by the Legislature. In the case on hand, since original document has been lost, the petitioner cannot be blamed neither can be refused permission to lead secondary evidence. On the contrary, it is fit case governed by clause (c) of Section 65 of the said 5 Act, where under the Court below ought to have permitted the petitioner to lead secondary evidence, in view of the scheme of the Act. It appears that the learned trial Court relied upon the judgment of the Madhya Pradesh High Court but did not discuss the facts and ratio laid down therein. In my view, the impugned order is perverse and needs to be quashed and set aside in the extra ordinary jurisdiction of this Court. 9. In the result, Writ Petition is allowed. The impugned order is quashed and set aside. Application of the petitioner seeking permission to lead the secondary evidence stands granted. No order as to costs. ( S.B.DESHMUKH, J.) ... akl