1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 214 OF 2009 Parsaram Dinabhau Pawar and another .. petitioners Versus Asaram Raghunath Kshirsagar .. Respondent. --- Mr. Vivek Dhage, Advocate for petitioner. Mr. S.S. Patharkar, Advocate for the respondent. CORAM : R.M. BORDE, J. DATE : 28th April, 2010. PER COURT :- 1] Rule . Rule made returnable forthwith. By consent of parties, taken up for final hearing at admission stage. 2 2] The petitioners/original plaintiffs instituted a suit for declaration of ownership and perpetual injunction against the defendants in respect of the agricultural property described in the plaint. It is not necessary to go into the factual aspects. However, suffice it to mention that the contentions raised by the plaint in the plaintiff were controverted by the defendants by filing their written statement. 3] The trial court, after considering pleadings framed issued and the evidence has commenced. The defendant presented an application requesting the court to call an original file in respect of land bearing Survey No.60 and 61 from the office of the Tahsildar. The application came to be presented on 25/9/2008, calling upon the trial court to direct the Tahsildar to produce the file in the court on the prescribed date. The Tahsildar reported the court that the file is not traceable and as such requested for grant of further time. It appears that the defendant presented an application at Exhibit 119/D requesting the court to exhibit the copies of the documents produced by him on record. The application was opposed by the petitioners/plaintiffs contending that unless the original is produced, the copies placed on record cannot be exhibited. The trial court, however, while considering the application granted liberty to the defendants to prove the documentsas secondary evidence in accordance with the provisions of law. The trial court also directed exhibition of receipt at Sr.No.7 from the list at Exhibit 54. It appears to have been proved by the defendant No.4 in his evidence. As such, the same was permitted to be exhibited. In view of the order passed on 3 6/1/2009, the defendants are allowed to lead evidence for proving the copies of the documents placed by them on record. The plaintiffs/petitioners herein has objected to the order contending that the trial court has not considered the provisions of Section 65 of the Indian Evidence Act, while passing the impugned order. 4] I have perused the impugned order and heard the arguments advanced by the respective counsel. 5] It appears that the objection raised by the petitioners is sustainable and the order passed by the trial court needs modification. Section 65 of the evidence Act provides that secondary evidence may be given in respect of existence, condition or contents of a document and sub section (C) of Section 65, provides that when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason arising from his own default or neglect, produce it in reasonable time, secondary evidence can be given. In the instant matter, the defendants have approached the court requesting the assistance of the court for securing originals from the office of the Tahsildar. However, it appears that the original documents are not available. In such circumstances, it is open for the defendants/respondents to tender an appropriate application requesting the court to permit them to lead secondary evidence and on consideration of such application, an appropriate order can be passed b the trial court. The procedure adopted by the trial court does not appear to be in consonance with the provisions of Section 65 of the Evidence Act. 4 5] In this view of the matter, the impugned order passed by the trial court on 6/1/2009, in R.C.S. No. 224/2004, below Exhibit 119/D to the extent of permitting to put exhibit to receipt at Sr.No.7 of list Exhibit 54,deserves to be quashed and set aside. The same is accordingly quashed and set aside to the extent specified above. The defendants be permitted to lead secondary evidence only after they fulfill procedural requirement of presentation of application for said purpose and after securing order on such application. The original defendants have liberty to tender an application seeking permission to lead secondary evidence for proving the documents placed on record including the possession receipt stated to have been produced at Exh.7 at list No.54. The trial court, after hearing the parties may consider such an application, if tendered by the defendants, in accordance with the provisions of law. [R.M. BORDE,J.] Grt/-