1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.4116 of 2010 Dhanpal Bhau Shirdhone ... Petitioner versus Subhash Bhau Shirdhone & ors. ... Respondents ... Mr. P.M.Arjunwadkar for the petitioner. CORAM : D.G. KARNIK, J. DATED : 15th June 2010 P.C. 1. By this petition, the petitioner (original defendant) challenges the order dated 18th December 2009 passed by the Learned Civil Judge, Jr.Division, Kurundwar permitting the plaintiff to adduce secondary evidence (photo copy of the memorandum) dated 14th April 1985. 2. Petitioner and respondent no.1 are brothers. According to respondent no.1, there was a partition between the petitioner and him and a memorandum of partition was executed between the parties on 14th April 1985. According to the respondent no.1, the original memorandum was in custody of the petitioner, he being the elder brother and respondent no.1 was in possession of a photocopy thereof. 2 He gave a notice to the petitioner for production of the original memorandum of partition by registered post on 25th August 2009. The petitioner did not reply the notice nor did he produce the original in the court. Therefore, the respondent no.1 applied to the court for permission to produce secondary evidence i.e. photocopy of the memorandum of partition in his possession. 2. Learned counsel for the petitioner submitted that prior to granting of permission, the Court was required to be satisfied that the original was in custody of the petitioner and since there was no such evidence, the Court could not have granted the permission. In paragraph no.2 of the application, respondent no.1 had specifically stated that the original memorandum of partition was in possession of the petitioner defendant no.1 and the photocopy was given in possession of the respondent. This fact was not denied by the petitioner by filing any affidavit. In the circumstances, the trial Court did not commit any error in allowing the production for secondary evidence in the nature of the photocopy. There is no merit in the writ petition which is hereby rejected summarily. (D.G. KARNIK,J.)