GULABRAO SAHEBRAO DAVAN Vs. MUKTABAI KRUSHNA CHINKAR

JUDGEMENT

(1.) BY this civil revision application, the petitioner challenges the order dated 10.10.1996 passed by the 3rd Jt.Civil Judge, J.D.,Baramati below Exh.111 in Reg.Civil Suit No.19/1987. By that order the trial court has rejected the application filed by the petitioner for permission to produce photostat copy of the original registered sale deed dated 10.9.1984 and to lead secondary evidence for proving all their documents and also for raising a presumption about the document, as the document is more than 30 years old. The application has been rejected by the trial court for the reasons disclosed in the order. One of the reasons that has been given by the trial court that though the petitioner was claiming that the document was with his lawyer and it is the lawyer who lost the document, no affidavit of the concerned lawyer was filed nor he was examined as witness. However, in this Civil Revision Application the petitioner has filed an affidavit sworned by Bhalchandra V.Radkar, an Advocate, who has stated in the affidavit that the document was lost by him. The affidavit of the lawyer filed by the petitioner is material for deciding the application. The learned counsel for the respondents, however, submits that the affidavit ought to have been produced before the trial court so that the respondent could have got opportunity to cross-examine the lawyer concerned. In my opinion, the learned counsel for the respondent is justified in making this submission. However, the fact remains that the affidavit on which the petitioner is relying, is now produced before the court and therefore, considering total circumstances of the case, in my opinion, it would be in the interest of justice to set aside the order passed by the trial court, which is impugned in this petition and to direct the trial court to decide the application again after allowing the parties to lead evidence, which they may choose to lead, both documentary and oral. It is, however, made it clear that the learned counsel for the res'dent has no objection for production of the certified copy of the sale deed dated 10.9.1964 on the record. It is further made clear that so far as statutory presumption that is to be raised about the document is concerned, it is not a matter to be decided at the interim stage. Therefore, the only prayer that is to be considered by the trial court at this stage, as to whether the petitioner is to be permitted to lead secondary evidence for proving the above referred sale deed or not.

(2.) IN the result, therefore, the revision succeeds and is allowed. The impugned order is hereby set aside.

(3.) THOUGH the revision filed by the petitioner is being allowed, in my opinion, as the petitioner is in possession of the land which admeasures 19 Acres for such a long time and it is only because of the reluctant of the petitioner to produce the document to which the respondent was repeatedly making a claim for its production, the suit has been delayed. Therefore, it would be in the interest of justice to direct the petitioner to pay costs of this revision,which is quantified at Rs.10,000/-. The payment of costs is a condition precedent for taking up the application at Exh. 111 for hearing. The petitioner is directed to deposit the said amount in the trial court within 4 weeks from today, which the trial court shall permit the respondent to withdraw. If the cost is not deposited within the aforesaid period, this revision shall be deemed to have been dismissed without reference to the court.