Bombay High Court
Shri Nandlal Radhomal Khatri vs Shri Chandrakant Purushottamdas Patel ... on 31 March, 2016
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2350 OF 2015
Shri Nandlal Radhomal Khatri
Aged : 59 years, Occ. Business,
R/o Dastur Nagar, Amravati. .... Petitioner
// Versus //
(1) Shri Chandrakant Purushottamdas Patel
Aged : Adult, Occ. Business,
R/o At present 71, Doby Road, Mendham,
N.J. 07945, U.S.A. through alleged
Power of Attorney Holder, Shri Bharatbhai
Madhubhai Patel, Aged - Adult,
Occ. Business, R/o Patel Market,
Opp. City Kotwali, Amravati.
(2) Shri Prakah Mansaram Ghemnani.
Aged : 47 years, Occ. Business,
R/o Badnera, Tq. & Dist. Amravati. .... Respondents
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Shri S. S. Alaspurkar, Advocate for the petitioner
Ms. Ritu P. Jog with Shri A. C. Dharmadhikari, Advocate for the
respondent no. 1
None for respondent no. 2
CORAM : PRASANNA B. VARALE, J.
DATE : 31-3-2016.
ORAL JUDGMENT
Heard Shri Alaspurkar, learned counsel for the petitioner and Ms. Jog, learned counsel appearing with Shri A. C. Dharmadhikari, learned counsel for the respondent no. 1.
2. Rule. Rule made returnable forthwith.
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3. By the present petition, the petitioner challenges the order passed by the learned 5th Joint Civil Judge Junior Division, Amravati dated 5-3-2015.
4. Brief facts giving rise to the present petition can be summarized as follows.
The petitioner is defendant no. 1 in the suit filed at the instance of the respondent no. 1 i.e. Civil Suit No. 13/2016 for eviction, possession and enquiry into mesne profits. It seems that in spite of grant of sufficient opportunities to the present petitioner i.e. defendant no. 1, the petitioner chose not to enter into the witness box leaving no choice for the learned Judge to forfeit his right to lead the evidence and the suit was listed for evidence of the defendant no. 2. The petitioner thereafter sought permission to lead the evidence and it was also granted in the interest of justice. The petitioner then moved an application for grant of secondary evidence under Section 65 of the Indian Evidence Act. It was the case of the petitioner that the documents referred to in the Exhibit 84 were misplaced by the defendant no. 1 i.e. petitioner and though the petitioner took out search of the original document, he was unable to trace out the original document as the document was lost. It was ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 11:09:59 ::: 3 Jg.wp2350.15.odt prayed to grant permission to the petitioner to lead secondary evidence. The application was rejected by the impugned order.
5. Shri Alaspurkar, learned counsel for the petitioner invited my attention to the document placed on record at Annexure D-1 and submitted that the petitioner is one of the authors of the document, namely, deed of partnership. He then submitted that the petitioner also issued notice to demand certain documents. Learned counsel for the petitioner submitted that it was the consistent stand of the petitioner that the said document was in the custody and possession of the petitioner and the same was lost during the pendency of the suit that is from grant of permission to lead the evidence till the application filed by the petitioner seeking grant of leave to lead secondary evidence. The learned counsel for the petitioner submitted that the learned Judge ought to have granted permission to the petitioner as prayed in the application and the respondent could also had an opportunity to cross-examine the petitioner so as to assess the claim of the petitioner that the document was lost not because of any fault of the petitioner.
Shri Alaspurkar, learned counsel for the petitioner submitted that the learned Judge without adopting such a course rejected the ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 11:09:59 ::: 4 Jg.wp2350.15.odt application on untenable grounds.
6. Per contra, Ms. Jog, learned counsel appearing with Shri Dharmadhikari, learned counsel for the respondent no. 1 vehemently submitted that the learned Judge in a detailed and reasoned order rejected the application. It is submitted by Ms. Jog, learned counsel that the attempt of the petitioner was not a bonafide one but the attempt is only to prolong the proceedings. Ms. Jog, learned counsel submitted that as the learned Judge rightly observed that there was no foundation laid by the petitioner to approach the Court seeking permission to lead secondary evidence in view of Section 63 and 65 of the Indian Evidence Act, no fault can be found with the order of the Court rejecting the application.
7. On the backdrop of the submissions of the learned counsel, I have gone through the material placed on record. It is not in dispute that the suit is initiated at the instance of the plaintiff i.e. respondent no. 1 in the year 2006. The learned Judge by observing the facts that more than sufficient opportunities were granted to the petitioner/defendant no. 1, the petitioner failed to avail these opportunities and even though the petitioner failed to avail these opportunities, the Court granted an opportunity to lead the evidence.
::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 11:09:59 :::5 Jg.wp2350.15.odt Then the learned Judge, on the backdrop of the reference to Exhibit No. 84 wherein certain documents were referred, observed that the petitioner/defendant no. 1 placed on record the original documents, namely, document nos. 1 to 4 and placed a photocopy of the document to which Shri Alaspurkar, learned counsel for the petitioner made a reference i.e. the deed of partnership. The learned Judge observed that the photocopy of the document was placed on record and the document was not even notarized document. It is further observed by the learned Judge that though the petitioner was duty bound to place on record the original document, in view of the provisions of Order 8 Rule 1-A(3) of the Code of Civil Procedure, photocopies of the documents were placed on record. The petitioner filed an application seeking permission to lead secondary evidence.
Perusal of the application shows that a statement as vague as it could be is made in the application and the statement reads that the original documents at serial no. 5 to 8 below Exh. 84 were misplaced by the defendant no. 1 and that the defendant no. 1 has searched the original documents but they are not traceable as they are lost.
Learned Judge was right in observing that the petitioner who was approaching the Court after a period of four years post filing his ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 11:09:59 ::: 6 Jg.wp2350.15.odt affidavit of examination-in-chief, failed to show even a minimum expectation of assigning the foundation so as to suggest that in spite of due diligence of the petitioner, the document which was in the custody and possession of the petitioner was lost and in spite of justifiable attempts to search the document, he was unable to trace out the said document. Considering the other factual aspect, namely suit which is filed in the year 2006, the evidence by way of affidavit tendered at the instance of the petitioner in the year 2010 and the application filed at the instance of the petitioner for leading secondary evidence in the year 2014, the apprehension expressed by Ms. Jog, learned counsel for the respondent no. 1 that it is nothing but an attempt to prolong the suit cannot be said to be a unjustified apprehension.
8. Though the learned counsel for the petitioner made an attempt to submit that the order of the learned Judge impugned in the petition is unsustainable, in view of Sections 63 and 65 of the Indian Evidence Act, bare perusal of the provisions of Section 65(c) itself expects that there must be material to show that the loss of the document is not arising from the reason, namely, default or neglect.
As stated above, the application filed at the instance of the petitioner ::: Uploaded on - 01/04/2016 ::: Downloaded on - 31/07/2016 11:09:59 ::: 7 Jg.wp2350.15.odt is as vague as it could be and there is absolutely no material to suggest the loss was beyond default and neglect of the petitioner.
Considering these aspects, in my opinion, the order passed by the learned Judge needs no indulgence and the petition being meritless deserves to be dismissed and same is, accordingly, dismissed.
ig JUDGE
wasnik
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