SHIVHARI SHANKAR KAPSE Vs. DNYANDEO RAMBHAU GAWANDE

JUDGEMENT

(1.) Heard Mr. A.R. Deshpande, learned counsel for the petitioners and Mr. Sohoni, learned counsel for the respondents.

(2.) The petition challenges the order dtd. 07/1/2021, passed below Exh.38 - an application for grant of permission to lead secondary evidence (page 22) in respect of a document which is a registered gift deed dtd. 27/1/1938, which has been filed below Exh.20/1 and marked as Article A. The application came to be filed at the stage of final arguments. The learned trial Court by the impugned order dtd. 07/01/2021 (page 23) has rejected the application. Mr. Deshpande, learned counsel for the petitioners by relying upon Shaikh Aftab Ahmed and another Vs Bhimrao s/o Sandu Waghmare and others in Writ Petition No.8442/2019, decided on 22/9/2021, in which the question whether any litigant permitted to lead secondary evidence as a matter of right without leave of the Court and is not required to make an application to seek such permission from the trial Court before leading secondary evidence has been answered by holding that the party may furnish secondary evidence and filing of an application seeking permission to lead secondary evidence would not be mandatory, however, an application for leading secondary evidence by a party is not precluded. The learned counsel for the petitioners contends that since the filing of an application is not prohibited the trial Court ought to have considered the application below Exh.38. There cannot be any dispute with the above proposition that even if the foundational facts required for leading secondary evidence are absent in the pleadings, an application can be filed for the said purpose, however, the said application has to be conform to the requirements of Sec. 65 of the Evidence Act. A perusal of the application below Exh.38 by which permission to lead secondary evidence is sought would indicate, that it does not even state as to what has happened to the original document, in whose custody it was, what are the efforts taken to get it produced, admitted. None of the requirements of clauses a to d of Sec. 65 of the Evidence Act are satisfied by the averments made in the application below Exh.38. In that light of the matter, since the requirements of law are not satisfied, I do not see any reason to interfere in the impugned order dtd. 07/01/2021, below Exh.38.

(3.) The petition also challenges the order dtd. 10/2/2021, on the application below Exh.51 by which Article A - the certified copy of the gift deed dtd. 27/1/1938 is sought to be exhibited on the ground that it is a document more than 30 years old and therefore, would carry the presumption under Sec. 90 of the Evidence Act. In my considered opinion, the presumption under Sec. 90 of the Evidence Act would only be attracted in case of an original document, apart from which, the presumption is of a limited nature restricted to the signature and such other part of the document which purports to be in the handwriting of any particular person and its execution and attestation. The presumption, would not carry forward to the proof of the contents of the document. In view of which also, I do not see any reason to interfere in the order dtd. 10/2/2021. Though reliance is placed upon P.K. Das Vs. Presiding Officer, Labour Court, Gauhati and another (2000) 9 SCC 242 that an opportunity should be granted for filing a fresh application for leading secondary evidence, however, the position in State of Rajasthan and others Vs. Khemraj and others (2000) 9 SCC 241, was that the application seeking permission to lead secondary evidence came to be rejected on the ground that it was not supported by any affidavit and averments, contents were vague. The rejection was maintained and the direction to file fresh application could only be attributed to the powers under Article 42 of the Constitution of India to the Honble Apex Court, considering which, I do not see any reason to follow the same course of action and also for the reason that the application was filed when the matter was closed for final arguments. The petition is dismissed. No costs.