SARFARAZ SHARAFALI FURNITUREWALLAversusAFSHAN SHARAFALI ASHOK KUMAR AND ORS

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO.12386 OF 2026

Sarfaraz Sharafali Furniturewalla             ....   Petitioner
             Vs.
Afshan Sharafali Ashok Kumar & Ors.           ....   Respondents


Mr. Rustom Pardiwalla i/b Smt. Shilpa Kamble for Petitioner.
Mr. Drupad Patil a/w Zaid S. Ansari, Mangesh R. i/b Zaid S. Ansari and
Associates for Respondents 1 and 2.

                                  CORAM : ARUN R. PEDNEKER, J.
                                  DATE   : 23rd September 2026

P.C. :


1.       Heard learned Counsel for the parties.

2.       Learned Counsel for the Petitioner submits that, by the impugned

order, the Trial Court has effectively circumvented the earlier directions

issued by it vide order dated 7th January 2026, which directions were

subsequently confirmed by this Court vide order dated 9th March 2026. By

the said orders, directions were issued for production of the current

passports, Voter IDs, driving licenses and Aadhaar cards of her husband.

Plaintiff No.2 was specifically directed to produce the latest passport,

Aadhaar cards, driving licenses and Voter IDs of himself, his wife and his

other children.

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29 WP 12386.26.doc                                                 Dusane
3.     Thereafter, an application came to be filed before the Trial Court

stating that the husband of Plaintiff No.1 and her daughter are residing

abroad, the husband being in the U.S.A. and the daughter being in Dubai,

and that it was not possible to produce the original documents of the

husband as he was residing outside India and his travel documents were

required for his travel. It was further stated that the passport of the daughter

had expired and that she had applied for a fresh passport, which had not yet

been received.

4.     In view thereof, permission was sought to lead secondary evidence by

producing certified copies of the passports, duly endorsed/attested by the

concerned Embassy.

5.     The Application is allowed by the trial Court on the conditions as

mentioned in the order.

       “1.     The application Exh.196 is allowed.

       2.     Plaintiff is permitted to tender the copies of passport
       and driving license of her husband and passport of her
       daughter as secondary evidence subject to laying proper
       foundational evidence in accordance with the law during her
       oral evidence.

       3.     The grant of this leave does not automatically dispense
       with the proof of execution, correctness or authenticity of the
       documents. All the objections of defendant no. 2 regarding
       admissibility, mode of proof and evidentiary value kept open
       to be decided at the final stage of suit.”
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                      6.     Learned counsel for the Petitioner submits that the order passed by the

                      Trial Court on 14th August 2026 circumvents the earlier order passed by the

                      Trial Court itself. This Court, however, is unable to agree with the said

                      submission. The Trial Court has specifically observed that the foundational

                      facts necessary for leading secondary evidence must first be established in

                      the course of evidence. Unless such foundational facts are duly established,

                      secondary evidence cannot be admitted or relied upon.

                      7.     The issue regarding the admissibility of the secondary evidence is kept

                      open to be considered and decided at the final stage of the suit.

                      8.     The correctness and authenticity of the documents so produced would

                      still have to be established, and their evidentiary value and effect would have

                      to be considered by the Court at the stage of final hearing.

                      9.     In view of the foregoing observations, I find no reason to interfere

                      with the impugned order. The same is accordingly dismissed.

BHALCHANDRA
GOPAL DUSANE
                                                                       [ ARUN R. PEDNEKER, J. ]
Digitally signed by
BHALCHANDRA
GOPAL DUSANE
Date: 2026.09.29
14:53:56 +0530




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                      29 WP 12386.26.doc                                                    Dusane