H. HUMKICHAND JAIN, SOLE PROPRIETOR OF DIAMOND EXPORTSversusJYOTI PRAKASH GHODE AND 6 ORS

                            MCA 350.2026




Sonam


        IN THE HIGH COURT OF BOMBAY AT GOA

           MISC. CIVIL APPLICATION NO. 350 OF 2026
                               IN
                   WRIT PETITION NO. 634 OF 2024

 Mr. H. Humkichand Jain,                     … Petitioner

                           Versus

 Mrs. Jyoti Prakash Ghode & 6 ors.           …Respondents


Mr. S. S. Kantak, Senior Advocate with Ms. Laxmi Dessai,
Advocate for the Petitioner.

Mr. C. A. Coutinho, Senior Advocate with Mr. Ivan
Santimano, Advocate for the Respondents.

                    CORAM : VALMIKI MENEZES, J.
                    DATED : 6TH AUGUST, 2026


P.C.:

1.       By this application, the Applicant seeks modification

of paragraph 3 of this Court’s order dated 10.12.2025,

wherein it was recorded that the Petitioner does not press

for his challenge to the order dated 16.02.2024. According

to the Applicant, the Applicant had never instructed his


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Advocate not to press for the challenge to the order of

16.02.2024 passed by the Trial Court.


     This application has been vehemently opposed by the

 Respondents, who have filed affidavit in reply.


2.   The background facts in which the application has

been filed would have to be considered by this Court in

order to decide whether the same ought to be granted. In the

Writ Petition No. 634/2024, the Applicant had thrown a

challenge to two orders of the Trial Court, the first being the

order of 16.02.2024, by which the Applicant’s application

for production of a Sale Deed dated 18.06.1985, through

secondary evidence was dismissed; second order dated

30.07.2024 which rejected the Applicant’s request for an

adjournment immediately after the application for the

secondary evidence had been dismissed. The adjournment

has been refused by the Trial Court.




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3.    In the Writ Petition No. 634/2024, after recording the

statement of the Advocate appearing for the Petitioner that

on instructions the challenge to order dated 16.02.2024 was

not pressed for, this Court proceeded to allow the Writ

Petition and set aside the order dated 30.07.2024 and

directions were issued to the Trial Court to complete the

recording of the Plaintiff’s evidence within a specified time

period.


4.    According to the application filed, it is the case of the

Applicant that he had never issued instructions to his

Advocate to withdraw a challenge to the first order; the

Applicant has explained the circumstances under which

such instructions, if issued, would be to its own detriment.

It is the Applicant’s case that the entire suit which is a title

suit hinges upon his claim on the title to the suit property

and the execution of the Sale Deed dated 18.06.1985, which

according to him was signed by the Defendants and

presented for registration; it is his case that it came to his

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knowledge, that the registration was never completed from

the Respondents in the Sub Registrar office, it came to his

knowledge that the original Deed which he claims to have

signed by the Defendants was not in the record of the Sub

Registrar; he has also claimed and produced in the evidence

Form-T received from the Sub Registrar office to

substantiate his claim that the said document had in fact

been presented to the Sub Registrar. It is on the basis of this

claim, that the Plaintiff who has averred that in his

application at Exhibit D-43 of the Trial Court’s file that he

sought leave to produce secondary evidence, in the form of

a carbon copy of the original Sale Deed on which signatures

of the Defendants are claimed to be in original. It is in this

background that the application for secondary evidence

under Section 65 was moved before the Trial Court and

same came to be dismissed by the first impugned order

dated 16.02.2024.




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5.    It is under these circumstances that the Applicant

claim that he had never instructed the Advocate appearing

for him to withdraw the challenge to this order, since

according to him, production of the secondary evidence was

essential for him to prove the allegations in the claim and

reliefs sought therein. The application contained all the

details of the circumstances under which he states that he

had never issued such instructions. The Applicant also

submits that he has instructed the said Advocate to withdraw

his Vakalatnama from the suit and to seize from representing

the Plaintiff in the suit.


6.    On perusal of the affidavit in reply, which refers to a

second Writ Petition which came be filed after the matter

was sent back to the Trial Court, where the Applicant once

again did not appear; that order also came to be set aside

after imposing cost. The affidavit basically puts on record

all the subsequent steps taken pursuant to the order of this

Court dated 10.12.2025, to demonstrate the conduct of the

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Applicant. However, apart from denials of the statement that

the Applicant had never issued such instruction to the

Advocate, there would be no reason to disbelieve this

statement, in the circumstances of the case. The

circumstances, as I see are that if the Plaintiff fails to prove

the execution of the document which he claims to be the

Sale Deed, and fails to prove that the Defendants have in

fact signed and executed the said document, the entire suit

may fail. From these circumstances, one can see that it

would be essential that the Plaintiff have to prove the

execution of the Sale Deed through which he claims title to

the suit property and claims to be put in possession of the

suit property. It is on that basis that he sought to produce the

said document in the secondary evidence by filing the

application at Exhibit D-43 before the Trial Court.


7.    For all the aforementioned            reasons and the

circumstances recorded above, I allow the application. The

order dated 10.12.2025 would stand modified to the extent

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that it records and allows the Applicant to withdraw the

challenge to the order dated 16.02.2024 passed by the

District Court. To that extent, the Writ Petition No.

634/2024 shall stand revived and shall be heard to the extent

that it challenges the order dated 16.02.2024, which was

passed on Exhibit D-43 before the Trial Court.


8.    The application stands disposed of.



                                  VALMIKI MENEZES, J.




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