Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 553 of 2009 Kiran Narayan Wagale & anr. ...Petitioner V/s. Sharad Moreshwar Rawte & ors. ...Respondents Mr. Karwande for the petitioner. Sunil D. Mogre for resopndents 1 to 5. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 30TH JANUARY, 2009 : 30TH JANUARY, 2009 : 30TH JANUARY, 2009 P.C. . Heard Counsel for the parties. 2. The first argument of the petitioners’ is that the receipt issued by the Courier service relied upon by the plaintiff cannot be the basis to proceed on the assumption that the service has been properly effected on the concerned defendants. Reliance is placed on Rule-9 sub-rule 5 of Order V of Civil Procedure Code. Relying on the said provision it is contended that the said provision does not permit taking duplicate receipt or acknowledgment on record. This is an argument of desperation. No such argument was canvassed before the Lower Court. In any case, the law does not prohibit taking duplicate copy of receipt on record. It is always open to rely on secondary evidence if the preliminary evidence is not available. That was a 2 matter of fact which ought to have been agitated before the Court below which has not been done. 3. From the concurrent finding of the Court below, it is noticed that defendants 2 & 3 were duly served on 13th January, 2005. As a matter of fact the said defendants contested the Interim Notice No. 4414/2004 which was discharged on 14th December, 2005. Thereafter, the defendants failed to make any appearance in the proceedings. The explanation offered was that the defendants 2 & 3 were under mental stress during the relevant period and could not pursue the litigation pending against them. This explanation has not been accepted by the Court below and in my view rightly. For, no tangible material to substantiate that position has been produced on record. Hence, this petition should fail. The same is dismissed. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]