1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. LETTERS PATENT APPEAL NO. 263 OF 2010 IN WRIT PETITION NO. 204 OF 2010 (DECIDED) (Muktamani Gyanchandji Goyal and another .v. Sanjay Maheshchandra Gupta and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : D.B. BHOSALE AND PRASANNA B. VARALE, JJ. 18TH JUNE, 2010. Heard Shri S.D. Khati, learned Counsel for the appellant. By this Letters Patent Appeal, the appellant has impugned the order dated 10.02.2010 passed by the learned Single Judge in Writ Petition No. 204/2010. In the Writ Petition, the appellant had impugned the order dated 04.12.2009 passed by the Civil Judge, Senior Division, Nagpur allowing the respondent/ plaintiff to lead secondary evidence under Section 63(2) of the Evidence Act in relation to the agreement to sell dated 07.05.1993. We have perused the order passed by the learned Single Judge so also the order passed by the trial Court. It appears that the respondent/plaintiff has placed on record the original agreement (first three pages). That is not in dispute. In view thereof, an application was filed by the respondent/plaintiff for leading secondary evidence in respect of the last page of the agreement since it was found missing. There was nothing before the trial Court as well as before this Court to presume that the last page of the original agreement was not filed on record. The respondent/plaintiff has taken a specific stand that the complete document was placed on record on 23.06.1999 itself. It is against this backdrop, the trial Court permitted the respondent/plaintiff to lead secondary evidence and that order has been confirmed by the learned Single Judge. We have heard the learned Counsel for the appellant. 2 He submitted that the agreement itself was not executed between the parties and the last page on which the parties suppose to have made signatures was never filed before the Court and hence the Courts below have committed error of law in allowing the respondent/plaintiff to lead secondary evidence in respect thereof. In support of his submissions, he placed reliance upon the judgment of the Apex Court in J. Yashoda .v. K. Shobha Rani (reported in 2007(5) SCC 730). For the reasons recorded by the learned Single Judge in the impugned order, we find no merit in the contentions urged by the learned Counsel for the appellant. Moreover, it is always open to the appellant to demonstrate before the Court by either leading evidence or by cross examining the witnesses of the plaintiff that such agreement was never executed. Merely because the respondent/plaintiff is allowed to lead secondary evidence in respect of the last page of original document, the rights of the appellant would not get affected. The judgment relied upon, in our opinion, is of no avail to the appellant in view of the peculiar facts of this case. The appeal is dismissed. JUDGE JUDGE *rrg.