1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3044 OF 2009 Shivaji s/o Shankarrao Deshmukh PETITIONER. V E R S U S Sau. Vandana w/o Ashok Chidrawar. RESPONDENT Shri V.V. Deshmukh, Advocate for the petitioner. CORAM : B.R. GAVAI, J : DATE : 2nd JULY, 2009 PER COURT :- 1. By way of present petition, the petitioner challenges the order dated 02.03.2009 vide which the application filed by the respondent-plaintiff for leading secondary evidence came to be allowed by the Second Jt. Civil Judge (S.D.), Parbhani. 2. The plaintiff has filed a suit for specific performance. The claim of the plaintiff is denied by the respondent-defendant. 3. In the said application, the respondent-plaintiff had filed an application for leading secondary evidence. It was the contention of the plaintiff that original agreement of sale dated 20.07.2003 was lost and therefore, liberty was sought to place on record certified copy of the said agreement issued by the notary. Said application is allowed. Hence, the present petition. 2 4. Shri Deshmukh, the learned counsel appearing on behalf of the petitioner submits that the learned trial court has grossly erred in allowing the application. It is submitted that there is no evidence on record submitted by the plaintiff to substantiate his claim that original documents could not be traced out. He therefore, submits that impugned order is not sustainable in law. 5. From the perusal of record, it would reveal that in the application which is filed, by respondent-plaintiff it is specifically stated that the plaintiff has tried to search the original agreement in the house but it could not be traced out. It is also submitted that xerox copy of the agreement was already on record. As such, the certified copy issued by the notary was sought to be placed on record. 6. It could be seen that the present defendant has himself admitted regarding execution of the document. On an affidavit it has been stated by the plaintiff that he tried to trace the document but same was not available and therefore a certified copy issued by the notary was sought to be placed on record. In my view the present case will clearly fall under Sub section C section 65 of Indian Evidence Act. In so far as the merits are concerned, same cannot be gone into at this stage. Even the evidentiary value of the said document would be considered at the stage of hearing of the suit. 3 8. In that view of the matter, no perversity or infirmity could be found with the approach adopted by the trial court so as to warrant interference in exercise of extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. Hence rejected. ( B. R. GAVAI ) JUDGE ..... aaa/office/wp3044.09 4