1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6908 OF 2009 State Bank Nagar Co-operative Housing Society Ltd. .. Petitioner. Vs. Ashutosh Construction Pvt. Ltd. & Others. .. Respondents. Mr.S.S.Kanetkar for the petitioner. Mr.Vikas Warerkar i/b Warerkar & Warerkar for respondent no.1 Coram: D.B. BHOSALE, J. Dated : 17TH AUGUST, 2009 P.C. . Heard learned counsel for the parties. 2. Rule. By consent, rule made returnable forthwith. Learned counsel appearing for the respondents waives service. The petition is taken up for hearing and final disposal at the admission stage itself. 3. The petitioners-defendants have challenged the order dated 9.7.2009 passed by the trial Court rejecting the application at Exhibit-250 in Special Civil Suit No.1517 of 1994 filed by the petitioners seeking permission to lead secondary evidence. 4. The petitioners sought permission to lead secondary 2 evidence in respect of the Court Commissioner – Mr.Sadanand Deshpande’s report. Mr.Deshpande was appointed as Court Commissioner at the instance of the respondents-plaintiffs for valuation of the construction work carried out by them in the suit property. The court commissioner, accordingly, carried out the commission work. Unfortunately, before the report was placed on record Mr.Deshpande died. In view thereof the defendants made efforts to bring original report of the court commissioner on record by issuing witness summons to the wife of Mr.Deshpande. The wife of Desphande, however, refused to handover the original report and hence the petitioners filed the application at Exhibit-250. In the application, the petitioners have stated that photocopy of the report was handover to them by Mr.Deshpande after the commission work was carried out by him as per the order of the court. It is against this backdrop the application was filed for allowing them to lead secondary evidence. Mr.Warerkar, learned counsel for the respondent fairly submitted that if all contentions, insofar as the contents of the report are concerned, are kept open, the respondents will not have any objection for allowing the petitioners to lead secondary evidence, as prayed. Keeping that in view and considering overall facts and circumstances of the case I am satisfied that the following order shall meet the ends of justice: The order dated 9.7.2009 is set aside. The application of 3 the petitioners at Exhibit-250, seeking permission to lead secondary evidence, is allowed. The respondents-plaintiffs shall not be understood to have admitted the contents of the report. It is open to the plaintiffs to challenge the report and/or the contents thereof on all grounds available in law. With these directions the rule is disposed of. All contentions of the parties are kept open. No costs. The parties to act on a copy of this order duly authenticated by the Registry of this court. (D. B. Bhosale, J.)