IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.283 OF 2008 Narayan Yeshwantrao Rajepandhare ...Petitioner V/s. Keshavrao Yeshwantrao Rajepandhare & Ors. ...Respondents ...... Mr.V.Z.Kankaria for Petitioner. Mr.K.B.Sonwalkar for Respondents 1 & 2. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 31, 2009. MARCH 31, 2009. MARCH 31, 2009. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Sonwalkar waives notice for Respondents 1 and 2. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. : 2 : 4. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Joint Civil Judge, Junior Division, Mohol dated 28th November 2007 below Exhibit 57 in R.C.S. No.4/2002. By this order, the Trial Court has rejected the Application preferred by the Petitioner (Defendant No.1) praying for direction against the Plaintiff to produce original Will dated 14th November 1991 and in the alternative, permit him to adduce secondary evidence of that original Will Deed in the form of certified copy thereof. The Court below has rejected the Petitioner’s Application. The Petitioner prior to this application, had filed another application praying for direction against the Defendant No.2. However, the Defendant No.2 stated that he was not in possession of the original Will Deed dated 14th November 1991. Since no relief was claimed against the Plaintiff, the Petitioner/Defendant No.1 took liberty of this Court to withdraw the Writ Petition No.8107/2006, so as to take out appropriate application before the Trial Court. In lieu of that liberty, the Petitioner has taken out the present Application : 3 : Exhibit 57. 5. The first question is: whether the Plaintiff was obliged to produce the original Will Deed dated 14th November 1991? Insofar as this aspect is concerned, the Plaintiff’s case is that they are not in possession of the original Will Deed dated 14th November 1991. In view of that stand taken by the Plaintiff, the question of issuing direction to the Plaintiff to produce the original Deed cannot be taken any further. As aforesaid, even Defendant No.2 claims that he is not in possession of the original Will Deed. Insofar as Petitioner/Defendant No.1 is concerned, he has categorically stated that he does not have copy of the original Will Deed. It is on that basis the Petitioner/Defendant No.1 is entitled to assume that the original Will Deed is not available. The Court below has however discarded that plea of the Petitioner, which, in my opinion, is manifestly wrong. No positive evidence has been produced either by the Plaintiff or the Defendant No.2 to indicate that the original Will Deed is : 4 : still in custody of the Petitioner/ Defendant No.1. If that evidence was forthcoming, perhaps, the argument of the Plaintiff and Defendant No.2 would be of some significance. In the circumstances, the view taken by the Trial Court by rejecting the stand of the Petitioner/Defendant No.1-that it be assumed that the original Will Deed is destroyed, will have to be overturned. 6. As aforesaid, since none of the parties are in a position to produce the original Will Deed, the Court will have no option but to accept the plea of the Petitioner/Defendant No.1 that the original Will Deed is unavailable and must have been destroyed. Notably, it is not in dispute that the said Will Deed is a registered document. The Petitioner/Defendant No.1 has produced certified copy of the said registered document. As the Petitioner has produced certified copy thereof, the Court is obliged to consider the same and allow the Petitioner to rely on the certified copy of the Will Deed instead of the original Will Deed. Accordingly, the Application preferred by Petitioner/Defendant No.1 (Exhibit 57) ought to : 5 : partly succeed to the extent of permitting the Petitioner/Defendant No.1 to produce the certified copy of the stated Will Deed dated 14th November 1991. 7. Needless to observe that the Court would consider the efficacy of the said document, provided the Petitioner has proved the contents of the said document which is a certified copy. 8. Petition disposed of on the above terms. A.M.KHANWILKAR, J.