1506wp2734.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.2734 OF 2011 M/s Welcome Cooperative Housing Society Ltd.,Nagpur ..vs.. Sh ri Keshaorao Sitaramji Awachat and ors. ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... Mr. Ejaz Ahmad, Advocate for the petitioner. CORAM : R.M.SAVANT, J. DATED : 15th June, 2011. 1. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 15/02/2010 passed by the Cooperative Court, Nagpur allowing application for grant of permission to adduce secondary evidence (Exh.63) filed by the respondent herein and the order dated 4/3/2011 passed by the Maharashtra Cooperative Appellate Court in Appeal being No.28 of 2010 by which, the order passed by the Cooperative Court dated 15/2/2010 came to be confirmed. 2. The issue is as regards the entitlement of the respondents, who are also the respondents in the dispute, to lead secondary evidence in respect of the sale-deed dated 31/8/1982. The respondents herein, who are the successors to the original disputants, who had filed Dispute being No.403 of 2005, have laid a claim in the said dispute on the basis of 1506wp2734.11.odt 2 the said sale-deed dated 31/8/1982. It is required to be noted that the petitioner/Society has denied the execution of the said sale-deed dated 31/8/1982 in favour of the predecessors of the present respondents. The respondents, therefore, filed an application for leading secondary evidence of the said sale- deed dated 31/8/1982. The said application was allowed by the Cooperative Court by its order dated 15/2/2010. The Co- operative Court observed that it is the case of the disputants/applicants that the original copy of the sale-deed is lying with the Society as demand was made by the Society to produce the same. Since the same has not been done, the disputants have produced the certified copy of the sale-deed on record. The Co-operative Court, therefore, allowed the said application and permitted the respondents herein i.e. the disputants to lead secondary evidence in respect of the sale- deed dated 31/8/1982. 3. Aggrieved by the said order dated 15/2/2010 passed by the Cooperative Court, Nagpur, the petitioner/Society filed an appeal being Appeal No.28 of 2010 before the Cooperative Appellate Court, Bench at Nagpur. The Cooperative Appellate Court by the impugned order dated 4/3/2011 has confirmed the order passed by the Cooperative Court. While confirming the said order passed by the Cooperative Court, the Cooperative Appellate Court has inter alia observed that though it was necessary for the disputants to issue notice to the petitioner/Society to produce the said document, the said technicality would not come in their way, as in reply to the application for leading secondary evidence the petitioner/Society has denied that the original sale-deed is in its custody. The Cooperative Appellate Court was, 1506wp2734.11.odt 3 therefore, of the view that in the teeth of the fact that the petitioner/Society has denied that the sale-deed is in its custody, the respondents herein i.e. the disputants were entitled to be permitted to lead secondary evidence. 4. On behalf of the petitioner, it is sought to be contended that in view of the non-compliance of section 66 of the Evidence Act, the courts below have erred in permitting the respondents herein to lead secondary evidence. It is further contended by the learned counsel for the petitioner that it was incumbent on the respondents to issue a notice to the petitioner/Society for producing the said document and it is only thereafter that the respondents would have been entitled to file an application for leading secondary evidence. 5. In support of the said contention, the learned counsel for the petitioner relied upon the judgment of the Apex Court reported in AIR 2007 SC 1721 in the matter of Smt.J.Yashoda ..vs.. Smt.K.Shobyha Rani wherein the Apex Court has enunciated the law as to when leading of secondary evidence would be permissible. 6. In the teeth of the facts of the instant case wherein the petitioner/Society has denied the existence of the said document, as also, after filing of the application, in its reply the petitioner/society has reiterated its stand as regards the non-existence of the said document, in my view, the orders passed by the Cooperative Court as well as the Cooperative Appellate Court cannot be faulted with. There is no illegality or infirmity committed by the courts below in permitting the respondents to lead secondary evidence. It is well settled that 1506wp2734.11.odt 4 though the secondary evidence has been allowed to be led, the respondents would be obliged to prove the contents of the said document in accordance with the law. In that view of the matter, no case for interference is made out. The writ petition is accordingly dismissed. JUDGE chute