1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8430 OF 2009 Chandrakant Ramling Bele ...Petitioner vs. Siddheshwar Narayan Mulge & Ors. ...Respondents Mr.Vaibhav Gaikwad h/f Shri A.M.Kulkarni for the petitioner Mr.S.G.Thokade for respondent nos. 1 to 3 CORAM :A.S.OKA,J. DATE : APRIL 13, 2010 P.C.: 1 Heard the learned counsel for the petitioner and the learned counsel for the respondents. Notice for final disposal was issued on 7 th October 2009. The petitioner is the defendant and the respondents are the plaintiffs. An application was made by the petitioner at Exhibit-214. The application was made praying that the documents mentioned therein be exhibited and read in evidence. By the impugned order, the said application has been rejected. 2 Paragraphs 3 to 5 of the impugned order read thus : 3 Per contra, Shri Bugade, advocate for the non=applicant vehemently argued that, it was for the applicant to get the documents exhibited through proper procedure. As he has failed to do so, now he cannot ask assistance of the Court for exhibiting the same. According to him, the applicant in his evidence nowhere specifically deposed exact date of the relevant entries and merely make an ambiguous submission 2 regarding it. As there is no specific evidence regarding entries, non applicant has prayed to reject the same. 4 Needless to say, it is not the duty of the Court to take efforts and see that the documents relied by the parties are duly exhibited or not. It is for the party who asserts certain thing shall prove it with the cogent and relevant evidence. More so, if at all it appears to the Court that, certain document though not exhibited, can be very well read in the evidence for the proper adjudication with certain explanation regarding it, Court is not precluded from doing so. However, as far as the task of exhibiting certain documents filed by the parties is concerned, it is bounden duty of the party to get them exhibited by giving proper evidence to that effect during the trial. 5 Much less the documents sought to be exhibited are not at all public documents. Whatever transaction took place, is in the private capacity of both the parties. In such circumstances, it was necessary for the applicant himself to get the documents exhibited through proper channel. At the fag end of the suit when it is fixed for argument it is not proper on the part of the applicant to seek assistance of the Court to get his document to be exhibited. In such circumstance, the application having no merit deserves to be rejected. (Emphasis added) 3 3 on plain reading of the impugned order, the entire approach of the learned trial Judge is erroneous and it must be said that the order is perverse. The evidence has been already adduced by the parties. It was the duty of the learned trial Judge to hear the parties, to go through the evidence and to find out whether the documents have been duly proved in accordance with law. The impugned order shows that the learned trial has not at all considered the evidence adduced by the parties. Therefore, this is a case where by setting aside the impugned order, the learned trial Judge will have to be directed to decide the application afresh in accordance with law. While dealing with the objections to the proof and admissibility of the said documents raised by the respondents, it is obvious that the learned trial Judge will have to be guided by the decision of this Court in case of Hemendra Rasiklal Ghia vs. Subodh Mody [2008 (6) Mh.L.J. 886]. 4 Hence I pass the following order : i) Impugned order dated 21 st August 2009 is quashed and set aside and the application at Exhibit-214 is restored to the file. ii)The learned trial Judge will decide the application afresh after hearing both the sides in the light of the observations made by this Court in this order. iii)The application shall be decided as expeditiously as possible and in any event on or before 15 th June 2010. iv)All contentions of the parties on merits are kept open. v) Petition is disposed of in above terms. JUDGE 4