CHANDRESHBHAI DHANRAJBHAI JETHANI Vs. MIHIRBHAI BHIKHABHAI VIRANI

JUDGEMENT

(1.) The present petition is filed by the petitioner - original plaintiff by challenging the impugned order dtd. 12/3/2021 passed below Exh.76 application in Special Civil Suit No.14 of 2009 by the learned Principal Senior Civil Judge, Gondal, whereby the trial court has rejected to exhibit some of the applications, which was sought to be exhibited.

(2.) Brief facts of the case are as such that the petitioner had preferred a Special Civil Suit No.14/2009 against the respondents before the Learned Principle Senior Civil Judge, Gondal praying for specific performance of agreement to sell dtd. 11/10/2005 for the immovable properties mentioned in the plaint (Exh-1) for a total consideration of Rs.25,00,000.00. The petitioner paid an earnest money of Rs.2,00,000.00 to the Respondent no. 1 through a cheque drawn on R.C.C. Bank bearing no. 86325 dtd. 05/10/2005. The petitioner filed an affidavit in examination-in-chief dtd. 19/07/2019 below exh-75 stating in detail factual narration and referring to the documentary evidences produced. It is stated on oath that original agreement to sell dtd. 11/10/2005 is not produced as such agreement to sell along with other documents were lost between Yagnik Road to Jubilee Chowk and the said incident of original documents getting lost were advertised by the petitioner in daily newspaper 'Akila' on 20/02/2009. The petitioner preferred an application dtd. 19/07/2019 below exh-76 to exhibit certain documents as mentioned in the said application, which are only marked and not exhibited. In the said application, it is again factually narrated as to why certain documents are produced by way of secondary evidence against primary evidence. However, the trail court by order dtd. 12/03/2021 below exh-76 refused to exhibit documents marked as 74/1, 74/2, 74/3, 74/13, 74/33, 74/34, 74/38, 74/39 and allowed other documents being marked as 74/4 to 74/12 and 74/14 to 74/32 along with 74/35 to 74/37 to be exhibited subject to proving of such documents. Hence, the present petition is preferred.

(3.) Heard Mr. Mihir Joshi, the learned senior counsel assisted by Mr. Saurabh G. Amin, the learned counsel for the petitioner and Mr. Vimal Patel, the learned counsel appearing for VMP Legal for the respondents. 4.1 Mr. Mihir Joshi, the learned senior counsel for the petitioner has submitted that the impugned order dtd. 12/3/2021 is contrary to law, equity and evidence on record and the trial court has committed gross and palpable error of law. Furthermore, he has submitted that the trial court has wrongly interpreted S. 65 of the Indian Evidence Act and 07 R. 14 of the Code of Civil Procedure. The trail court ought to have exhibited the document marked with 74/1 and admitted the said evidence as secondary evidence by virtue of Sec. 65(c). It is stated in the application that the originals of the same was lost. The applicant has produced vide mark 74/1 a photocopy of the original, which has been compared and notarized and it has been recorded in his book at Sr.No. 2075 pg 68. Thus the said document is a photcopy prepared by know mechanical means which itself insures accuracy of the copy. Furthermore, he has submitted that the trial court has failed to give any reason for not exhibiting the other documents and thus the order is not a reasoned order and amounts to breach of principles of natural justice. Furthermore, he has submitted that trial court ought to have admitted the documents marked with 74/2, 74/3 as 'Exhibit' as the said documents are original and hence, amounts to primary evidence by virtue of Sec. 62 of the Indian Evidence Act. Document at mark 74/2 is the original newspaper advertisement published in Akila newspaper on 20/2/2009 wherein it is declared that original Saudachithi/agreement to sale is lost and document at Exh. 74/3 is the original bill for publishing the said advertisement issued by M/s. Simple Ad. and Commu. Furthermore, he has submitted that the trial court ought to have admitted and exhibited the documents marked 74/13 as the said document is a 'proposed public notice' for the property in question, it is prepared on the basis of instruction given by the petitioner and respondents and such document bears signature of the 3 respondents. The petitioner has produced a photocopy of the original which has been compared and certified as "True Copy" of the original by Notary Public Shri H. ?. Patel on. Patel on 20/4/2007 and it has been recorded in his book at Sr. no. 2076 pg. 68. Thus the said document is a photocopy prepared by known mechanical means which itself insures accuracy of the copy.