: 1 : 2309-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2309 OF 2011 Diwan Hayat Singh Adhikari .. Petitioner v/s. Mohammed Hashib Shah .. Respondent ......... Mr. Amardev J. Uniyal for the petitioner Mr. R.P. Ojha for the respondent ......... CORAM : R.Y.GANOO, J DATE : 8th SEPTEMBER,2011. P.C. : 1. The petitioner plaintiff filed the suit in the City Civil Court, Mumbai being S.C. Suit No.4667 of 2001 to see that the order of injunction is sought against the respondent namely, respondent should not disposes the plaintiff from the suit premises, save and except, by due process of law. After the issues were framed at the stage of recording of evidence, the petitioner wanted to rely upon a Notarised copy of the Agreement dated 30th March, 2001 in respect of the stand taken by the petitioner that he is in possession of the suit property. : 2 : 2309-11-wp=.sxw 2. The learned Judge of the City Civil Court, Mumbai was required to go through the evidence affidavit as well as the documents, on which the petitioner wanted to rely upon and mark the documents as exhibit or for identification. This was done by him by order dated 8th February, 2011. This order dated 8th February, 2011 is challenged in this petition. 3. I have heard learned advocates on both sides. Learned advocate for the petitioner submitted before this Court that as per proviso to Section 49 of the Indian Registration Act, 1908 , a document not registered can be relied upon in the course of the trial in two cases viz. namely; (i) in a suit for specific performance under Chapter 2 of the Specific Reliefs Act, 1963 or (ii) as evidence of any collateral transaction not required to be effected by registered instrument. 4. Learned advocate appearing on behalf of the petitioner relied upon following judgments to contend that these judgments do cover the case of the petitioner and that the learned Judge should have appreciated the point in question and accept the said Agreement and mark it as exhibit. : 3 : 2309-11-wp=.sxw (a) Bhaiya Ramanuj Pratap Deo Vs. Lalu Maheshanuj Pratap Deo & Ors. reported in AIR 1981, SC 1937. (b) Vinodkumar Shantilal Gosalia Vs. Gangadhar Narsingdas Agarwal & Ors. reported in AIR 1981, SC 1946. 5. I have perused the aforesaid two judgments. The Supreme Court in both these cases have observed that the document though not registered, can be looked into for collateral purpose of ascertaining the nature of possession. Learned advocate for the petitioner submitted that petitioner wanted to rely upon the said Agreement to show that he is in possession of the property. In my view, if the petitioner wanted to rely upon the said Agreement to show that he is in possession, simplicitor that would not fall within the ambit of the provisions of the term “evidence of any collateral transaction not required to be effected by registered instrument”. On this count, though the order passed by the learned Judge of the City Civil Court, Mumbai is not properly worded, the ultimate decision arrived at by the learned Judge is correct. 6. On this count, no interference is required in the impugned order. It is noted that the learned Judge has returned notarized copy of the Agreement dated 30th March, 2001, which was produced by the plaintiff as : 4 : 2309-11-wp=.sxw a document on which plaintiff wanted to rely upon. The order passed by the learned Judge of the City Civil Court, Mumbai to return the document to the plaintiff is contrary to the well established procedure. The said document should have been retained in the Court. Hence, the petitioner is directed to lodge the said notarized copy of the Agreement dated 30th March, 2001 if he has withdrawn it from the record. If not, the same shall remain on record. 7. For the aforesaid reasons, petition is dismissed with no order as to costs. (R.Y.GANOO, J.)