JOAO RODRIQUES Vs. JOSE ANTONIO RODRIGUES

JUDGEMENT

(1.) On 28/01/2016, a notice for final disposal was issued in this petition. The record shows that the respondents were also represented by their Counsel on 04/05/2016. However, today, none appears for the respondents. I have heard the learned Counsel for the petitioners and the petition is being disposed of finally.

(2.) The petitioners are the original plaintiffs, who are challenging the order dated 28/12/2015 passed by the learned Civil Judge, Junior Division at Panaji in Regular Civil Suit No.93/2010/D, whereby their application (Exh.31), for permission to lead secondary evidence, by production of negatives of some photographs, produced on record, has been rejected. The learned Counsel for the petitioners has placed reliance on the decision of this Court in Suresh Pandharipande vs. Parag Pandharipande; 2016(2) ALL M R 563, in order to submit that the existence of original document and its loss, are the two factors necessary, to permit the petitioners to lead evidence. He, therefore, submits that the application for permission to lead secondary evidence, could not have been decided, before the petitioners leading evidence. He submits that merely because the negatives (which are primary evidence of the photographs) were not mentioned in the list of reliance, would not be sufficient to hold that no such negatives ever existed, which is one of the reasons given by the learned Trial Court, while rejecting the application.

(3.) I have considered the circumstances and the submissions made. In the case of Suresh Pandharipande (supra), this Court had relied on its earlier decision in the case of Bank of Baroda, Bombay Vs. Shree Moti Industries, Bombay and others; 2009(1) Mh.L.J. 282, in which it has been, inter alia, held that while considering the prayer for grant of permission to lead secondary evidence, two things are required to be proved namely, (i) there must be evidence of existence of original document and (ii) there must be evidence of its loss. In Suresh Pandharipande (supra), this Court found that these aspects cannot be proved unless the party concerned is permitted to enter the witness box and/ or examine witnesses.