1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7317 OF 2009 Sukdeo s/o Malu Salunke Age: 70 Yrs., occu. Agril. r/o Borawal Darwaja, Yawal District Jalgaon. - PETITIONER (orig.Plaintiff) VERSUS 1) Smt. Kamalabai Wd/o Shankar Warule, Age: 80 Yrs., occp. Nil, r/o Dhangar wada Near Mhasoba Mandir, Yawal, District Jalgaon. 2) Devidas s/o Shankar Warule, Age: Major, occu. Service, R/o Deshpande Galli, Yawal, District Jalgaon. 3) Shivdas s/o Shankar Warule, Age: Major, occu. Service, r/o Dada Phalak Nagar, Yawal, Dist. Jalgaon. 4) Sunil s/o Shankar Warule, Age: Major, occu. Service, r/o Dhangar Wada, Yawal, District Jalgaon. 5) Ashok s/o Shankar Warule, Age: Major, occu. Servie, r/o Nivruttinagar, Near Manjra Stop, Jalgaon High Way, Near Gujral Petrol Pump, Jalgaon, Dist. Jalgaon. 2 6) Vimal w/o Ramesh Mali, Age: Major, occu. Household, r/o Vidyanagar, Faizpur, Tq. Yawal, Dist. Jalgaon. 7) Shobha w/o Bapu Mali, Age: Major, occu. Household, r/o Zope Wada, Near Jyotishi Karyalay, Warangaon, Tq.Bhusawal, Dist. Jalgaon. - RESPONDENTS ***** Mr.AM Gholap,Advocate for Petitioner; Mr.SS Bora, Advocate for Resp.Nos.1 to 7. ----- CORAM : R.K.DESHPANDE, J. DATE : 10th June, 2010. ORAL JUDGMENT: 1) Rule, returnable forthwith. Learned counsel for Respondent nos. 1 to 7 waives service of notice. Heard finally by consent of parties. 2) This writ petition is by the original plaintiff, challenging the order dated 2.9.2009 passed by learned Civil Judge, Junior Division, Yawal, in Regular Civil Suit No. 38/2009, directing the plaintiff to file original document, i.e. Agreement dated 6.5.1989. 3) Shri Gholap, the learned Counsel for the 3 petitioner, has urged that he has denied that he is in possession of the said document, which is at Serial No.2 of List (Exhibit-37). However, in spite of that, the Court has directed the plaintiff to produce the original document. The finding is recorded by the Court that the document must be in possession of the plaintiff. According to him, such finding is not based upon any evidence on record. 4) Shri Bora, the learned Counsel for the Respondents submits that the respondents have filed an application under Section 66 of the Indian Evidence Act, giving notice to the plaintiff for production of document so as to enable the defendants to lead secondary evidence. 5) It is not in dispute that the matter is at the stage of orders on application filed under Order 39 Rule 1 and 2 of CPC; the issues are yet to be framed and, therefore, passing of such orders on the application would be premature. Even otherwise, the application was for the purpose of leading secondary evidence, as contemplated by Section 66 of the Evidence Act. Hence, there was no propriety and justification for the Trial Court to pass the orders at this stage. 4 6) In view of the aforesaid position, the instant petition succeeds. The order dated 2.9.2009 passed by the trial Court below Exhibit-35 is quashed and set aside. The parties are at liberty to press application (Exhibit-35 or to file another such application, after the issues are framed, and the Trial Court shall decide the same in accordance with law. Rule is made absolute in aforesaid terms. No order as to costs. sd/- (R.K.DESHPANDE) JUDGE bdv/p/wp7317.09 Authentic copy (BD VADNERE,PS)