NERGISH D BHARUCHA Vs. SHAH ASSOCIATES

JUDGEMENT

(1.) A notice for final disposal was issued on 15th March 2010. The petitioner is the legal representative of the original plaintiff and the respondent is the first defendant. The second defendant is dead. In a suit for declaration filed by the petitioner, an application was made by the petitioner seeking permission to lead secondary evidence of documents by production of photo copies thereof.

(2.) THE case made out in the said application by the petitioner was that the original plaintiff had engaged services of an advocate Mrs.Uma Khanna and all original documents were handed over by her to the said advocate. It was contended that the petitioner had taken photo copies of the original documents before entrusting the said documents to the said advocate. It is alleged that the photo copies were prepared on the basis of a mechanical process. The contention raised in the application is that the Advocate declined to part with the documents and that certain amount was demanded by her. Reliance is placed on a complaint filed against the said lawyer with the Bar Council. The application was rejected by the learned Judge of the Court of Small Causes by passing the impugned order. The learned Judge observed that the petitioner was not aware whether the said advocate had destroyed the original documents. The learned Judge observed that the proceedings were pending against the advocate with the Bar Council. The learned Judge proceeded to observe that for proving the photo copies, the petitioner may examine the said advocate as a witness.

(3.) THE specific case made out by the petitioner in the application is that the original documents were entrusted to the advocate who declined to return the documents. It transpires that in the pending complaint against the said advocate before the Bar Council of India, the daughter of the advocate has handed over certain original documents to the petitioner. Hence, there appears to be a basis for the allegation that the original documents were entrusted to the custody of the advocate and as the documents have not been returned, secondary evidence of the said documents will have to be permitted to be adduced in the form of photo copies thereof. Perusal of the impugned order shows that the learned trial Judge has observed that the petitioner has produced photo copies of the documents on record and it is for the petitioner to prove said documents. In fact, the trial Court has observed that the petitioner will have to examine the said advocate to prove said documents. A complaint filed before the Bar Council by the petitioner against the said Advocate is pending. Hence, the petitioner cannot be expected to examine the Advocate as her witness. The prayer made for grant of permission to lead secondary evidence has not been considered on merits. The application made by the petitioner has been affirmed on oath. There is a substance in the contention that the original documents were entrusted to the custody of the Advocate and the Advocate has not returned the said documents. Therefore, the trial Court ought to have allowed the petitioner to lead secondary evidence of the documents in the form of the alleged photo copies of documents placed on record. Out of 40 documents in respect of which relief was sought, certain original documents have been handed over to the petitioner. The list of the said documents has been taken on record and marked "X" for identification. Permission deserves to be granted in relation to the rest of the documents. It is obvious that the petitioner will have to prove that the photo copies produced are the true copies of the original documents. Even otherwise, the petitioner will have to prove the execution and contents of the documents.