1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 9463 OF 2009 Smt. Manda Barku Lokhande. .. Petitioner Vs Shri Ravikant H. Sakuja. .. Respondent -- Shri Navin B. Shah i/by Shri Piyush N. Shah for the Petitioner. Shri S.H. Joshi for the Respondent. -- CORAM : A.S. OKA, J DATE : 29TH JANUARY, 2010. P.C. Heard learned counsel appearing for the parties. By the impugned order, an application made by the Petitioner- Original Plaintiff at Exhibit-21 has been rejected. The Petitioner/Plaintiff filed a suit for possession of the suit property, more particularly described in the Plaint. The case of the Petitioner is that the suit premises was allowed to be used by the Respondent on the basis of a leave and licence Agreement dated 2nd October, 2004. The suit was filed after legal notice was issued by the Petitioner to the Respondent. In the Written Statement filed by the Respondent, it is contended that the alleged Agreement dated 2nd October, 2004 is fabricated and no such Agreement has been executed by the Respondent. 2. In the Application at Exhibit-21, the Petitioner stated that a xerox copy of the said Agreement has been produced along with the suit. Thereafter, a notice to produce document was given by the Petitioner to the Respondent and the Respondent replied that the original document was not in his custody. A prayer in that application is for permitting the Petitioner to 2 lead secondary evidence of the original by the said xerox copy and for reading the said xerox copy in evidence. By the impugned order, the said application has been rejected. 3. Learned Counsel appearing for the Petitioner submits that a xerox copy of the Agreement was produced along with the suit and the fact remains that now the original is not available and, therefore, the trial Court ought not to have taken a hyper technical approach. 4. Learned counsel appearing for the Respondent pointed out that in the affidavit in lieu of examination-in-chief, a specific statement has been made by the Petitioner that the original agreement is produced. He pointed out that thereafter the stand was changed by the Petitioner by giving notice to produce the original document to the Respondent and now the stand is sought to be taken that the original of the Agreement has been misplaced. He submitted that considering the inconsistent stand taken by the Petitioner, the trial Court was justified in rejecting the application. He submitted that the alleged Agreement of leave and licence is compulsorily registrable document and to get over of the defect of non-registration, this method is being adopted by the Petitioner. He submitted that the production of the xerox copy in evidence cannot be permitted 5. I have considered the submission. A xerox copy of the alleged Agreement was produced along with the Plaint. It is true that a statement was made in the affidavit in lieu of examination-in-chief of the Petitioner that 3 the original Agreement was produced. It is not in dispute that the original agreement was in fact not produced. Thereafter, notice to produce the document was given by the Petitioner to the Respondent. The response of the Respondent was that the original was not in his custody. In that context, a specific averment has been made in the Application at Exhibit-21 that the original has been misplaced. Therefore, this was a case where the trial Court ought to have permitted the Petitioner to lead secondary evidence of the said Agreement in the form of a xerox copy of the alleged Agreement which is placed on record along with Plaint. It is obvious that the contents of the said document will have to be proved by the Petitioner. If, in law, the document requires compulsory registration and the same has not been registered, it is obvious that the trial Court will have to consider this aspect while deciding the issue of admissibility of the document. The learned counsel appearing for the Respondent is right to the extent that at this stage, an order cannot be passed that the xerox copy should be read in evidence. 6. Hence, I pass following order. (a) The impugned order dated 30th September, 2009 is quashed and set aside. (b) The Application at Exhibit-21 is partly allowed by permitting the Petitioner to lead secondary evidence of the alleged Agreement dated 2nd October, 2004 by the xerox copy of the said Agreement which is on 4 record at Exhibit 3/1. (c) It is made clear that it will be for the Petitioner to prove the execution and the contents of the alleged Agreement. The contention of the Respondent that the Agreement is not admissible in evidence on account of non-registration is also kept open. (d) Issues of admissibility and proof of agreement is kept open. (e) Writ Petition is partly allowed in above terms. JUDGE