GANGARAM APPASAHEB SALUNKE AND OTHERSversusLATE DR. MADHUKARRAO THAVARE THR ITS AUTHORIZED OFFICER

2026:BHC-AUG:8809
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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                               WRIT PETITION NO.8452 OF 2025

               1.    Gangaram S/o Appasaheb Salunke,
                     Age: 45 Yrs, Occup: Agri,
                     R/o. At Post: Tunki, Nimgaon,
                     Tq.: Vaijapur, Dist: Aurangabad.

               2.    Bharati W/o Gangaram Salunke,
                     Age: 38 Yrs, Occup: Agri,
                     R/o. At Post: Tunki, Nimgaon,
                     Tq.: Vaijapur, Dist: Aurangabad.

               3.    Bhausaheb S/o Shankarrao Zinjurde,
                     Age: 62 Yrs, Occup: Agri/Business,
                     R/o. Mahalgaon,
                     Tq.: Vaijapur, Dist: Aurangabad.                ..Petitioners
                                                               (Org. Def. No.1 to 3)
                             Versus

               Late Dr Madhukarrao Thavare,
               (Bhau) Nagri Sahakari Pat
               Sanstha Ltd. Mahalgaon
               Tq: Vaijapur, Dist: Aurangabad
               Through it’s Authorized Off.
               Chandrakant S/o Namdeo Zinjurde                       ..Respondent
                                                                 (Org. Plaintiff)
                                                ...
               Mr. D. R. Shelke, Advocate for Petitioners.
               Mr. A. M. Gholap h/f Mr. K. J. Suryawanshi, Advocate for
               Respondent.
                                               …
                                       CORAM : S. G. CHAPALGAONKAR, J.
                                       DATED : 28th JANUARY, 2026.
               JUDGMENT:-

               1.    Rule.     Rule made returnable forthwith.      By consent of

               parties, matter is taken up for final hearing at the admission stage.


               2.    The petitioners (original defendants) impugns order dated

               07.05.2025 passed by Maharashtra State Co-operative Appellate
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Court, Mumbai Bench at Aurangabad in Revision Application

No.1/2025 as well as order dated 21.12.2024 passed below Exhibit-

41 by Co-operative Court, Aurangabad in C.C.A. No.40/2019.


3.   The respondent instituted proceeding in nature of dispute

before Co-operative Court seeking recovery of loan alongwith

interest from defendants.     The petitioners/defendants seriously

disputed grant or disbursement of loan to them and took plea that

claim is based on forged and fabricated documents. The defendants

contend that they have already moved police machinery and

Competent Authority against office bearers of respondent-Bank.

As such, there appears serious dispute on foundational facts put up

before Co-operative Court seeking recovery of amount.


4.   The Co-operative Court framed issues. The respondent-Bank

filed evidence affidavit of its Manager alongwith photo copies of

loan documents.    The disputant-Bank had also filed application

below Exhibit-28 seeking permission to lead secondary evidence.

However, Co-operative Court observed that disputant to prove

documents. Aggrieved by said order petitioners/defendants filed

Revision Application before Co-operative Appellate Court, who

modified order passed below Exhibit-28 and disposed application,

particularly observing that unless there is compliance of conditions

laid down in Sections 63 and 65 of Indian Evidence Act by giving

foundational evidence, Court cannot accept secondary evidence.
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Merely filing secondary evidence and accepting same does not

mean that Court has agreed upon to read evidence being admitted.


5.    The petitioners/defendants filed another application at

Exhibit-41 seeking rejection of secondary evidence produced by

respondent/disputant, so also reject dispute.      The Co-operative

Court rejected said application being misconceived observing that

no application seeking permission to lead secondary evidence has

been pending or filed on behalf of disputant.         Without proof

documents cannot be read in evidence. The petitioners’ application

is premature, as documents produced are not exhibited.


6.    Aggrieved petitioners approached Co-operative Appellate

Court by filing Revision. The Co-operative Appellate Court again

observed that disputant-Society has not examined witness on

secondary evidence or recorded foundational evidence. Till then,

opponent/defendants have no reason to raise objection and seek

rejection of secondary evidence. The objection is clearly premature.

In light of aforesaid backdrop, present Writ Petition has been filed.


7.    Mr. Shelke, learned Advocate appearing for petitioners

vehemently submits that procedure adopted by Co-operative Court

is inconsistent with well established procedure required to be

followed while permitting secondary evidence on record of trial. By

inviting attention of this Court to language of Section 65 of Indian
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Evidence Act, he would urge that unless evidence as to existence or

contents of document is given or condition enumerated in Clause

Nos.(a) to (g) of Section 65 are complied, secondary evidence or

contents of document are not admissible. Ignoring procedure Co-

operative Court permitted disputant Bank to file photo copies of so

called loan documents. The disputant-Bank has tendered evidence

affidavit of its witness referring such an inadmissible documentary

evidence.   The petitioners/defendants are put to cross-examine

witness. According to Mr. Shelke, if petitioners proceeds to cross-

examine witness on contents of affidavit and documents relied by

disputant-Bank, they would suffer irreversible loss.      Mr. Shelke

urges that unless Trial Court decides on admissibility of secondary

evidence or disputant puts foundational evidence to make out case

for admissibility of documents, disputant cannot proceed further.


8.   Per contra, Mr. Suraywanshi, learned Advocate appearing for

respondent supports impugned order.        Mr. Gholap ably assisted

this Court and graciously made submissions on legal issues.


9.   Having    considered    submissions    advanced    by     learned

Advocates appearing for respective parties, controversy that arises

for consideration is whether Co-operative Court was justified in

rejecting petitioners’ application seeking rejection of secondary

evidence tendered by respondent/disputant, particularly giving
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reason that such prayer is premature, as document produced in the

form of secondary evidence are not yet exhibited.


10.    The respondent/disputant has tendered evidence affidavit

alongwith photo copies of loan documents, which are disputed by

petitioners with empathetic statement that those are forged or

manipulated documents. The petitioners, therefore, contends that

documents being xerox copies ought to have been rejected in

absence of foundational evidence or plausible reason for laying

secondary evidence. The Co-operative Court took a view that yet

stage to consider admissibility of secondary evidence has not

arrived and documents produced are not yet exhibited. Even Co-

operative Appellate Court while approving view of Co-operative

Court observed that in absence of foundational evidence as to

acceptability of secondary evidence, documents filed by disputant-

Bank cannot be considered and further observed that application

tendered by petitioners seeking rejection of secondary evidence is

premature.


11.    The Supreme Court of India in case of Dhanpat Vs. Sheo

Ram (Deceased) through Lrs. and Others1 discussed provisions

of Section 65 of Indian Evidence Act and observed in paragraph

no.22 as under:

        “22. There is no requirement that an application is
        required to be filed in terms of Section 65(c) of the
1   (2020) 16 SCC 209.
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      Evidence Act before the secondary evidence is led. A
      party to the lis may choose to file an application which is
      required to be considered by the trial court but if any
      party to the suit has laid foundation of leading of
      secondary evidence, either in the plaint or in
      evidence, the secondary evidence cannot be ousted
      for consideration only because an application for
      permission to lead secondary evidence was not
      filed.”


12.   The aforesaid observations makes it clear that formal

application for leading secondary evidence is not necessary, if

foundational facts required for leading secondary evidence are

pleaded in plaint or during course of evidence.         At this stage,

reference can be given to Section 136 of Indian Evidence Act, which

reads thus:

      “136. Judge to decide as to admissibility of evidence.
      –– When either party proposes to give evidence of any fact,
      the Judge may ask the party proposing to give the
      evidence in what manner the alleged fact, if proved, would
      be relevant; and the Judge shall admit the evidence if he
      thinks that the fact, if proved, would be relevant, and not
      otherwise.
             If the fact proposed to be proved is one of
      which evidence is admissible only upon proof of
      some other fact, such last-mentioned fact must be
      proved before evidence is given of the fact first-
      mentioned, unless the party undertakes to give
      proof of such fact, and the Court is satisfied with
      such undertaking.
             If the relevancy of one alleged fact depends upon
      another alleged fact being first proved, the Judge may, in
      his discretion, either permit evidence of the first fact to be
      given before the second fact is proved, or require evidence
      to be given of the second fact before evidence is given of the
      first fact.”
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13.    Illustration (b) of Section 136 of Indian Evidence Act is also

relevant in facts of present case, which reads thus:

       “(b) It is proposed to prove, by a copy, the contents of a
       document said to be lost.
       The fact that the original is lost must be proved by the
       person proposing to produce the copy, before the copy is
       produced.”


14.    The aforesaid provision makes it clear that if disputant

wants to rely upon secondary evidence in the form of photo copies

of loan documents, he will have to first prove fact that original is

lost, of which copy is produced.        It is, therefore, burden on

disputant to first produce foundational evidence to make out case

for leading secondary evidence of loan documents. The Court will

have to find out from pleadings or evidence affidavit of disputant, if

necessary facts to permit secondary evidence in terms of

contingencies prescribed under Clause (c) of Section 65 of Indian

Evidence Act are brought on record. It is possible for disputant to

supplement reasons for accepting secondary evidence by filling

application supported with affidavit in case such reasons could not

be supplied in plaint or first evidence affidavit that refers to photo

copies of documents lost. The Supreme Court in case of Bipin

Shantilal Panchal Vs. State of Gujarat and another 2,

observed in paragraph nos.14 and 15 as under:

          “14. When so recast, the practice which can be a better
          substitute is this: Whenever an objection is raised
          during     evidence-taking    stage   regarding     the
2   (2001) 3 SCC.
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       admissibility of any material or item of oral evidence
       the trial court can make a note of such objection and
       mark the objected document tentatively as an
       exhibit in the case (or record the objected part of the
       oral evidence) subject to such objections to be decided at
       the last stage in the final judgment. If the court finds at
       the final stage that the objection so raised is
       sustainable the Judge or Magistrate can keep such
       evidence excluded from consideration. In our view there
       is no illegality in adopting such a course. (However, we
       make it clear that if the objection relates to deficiency of
       stamp duty of a document the court has to decide the
       objection before proceeding further. For all other
       objections the procedure suggested above can be
       followed).

       15. The above procedure, if followed, will have two
       advantages. First is that the time in the trial court,
       during evidence-taking stage, would not be wasted on
       account of raising such objections and the court can
       continue to examine the witnesses. The witnesses need
       not wait for long hours, if not days. Second is that the
       superior court, when the same objection is recanvassed
       and reconsidered in appeal or revision against the final
       judgment of the trial court, can determine the
       correctness of the view taken by the trial court
       regarding that objection, without bothering to remit the
       case to the trial court again for fresh disposal. We may
       also point out that this measure would not cause any
       prejudice to the parties to the litigation and would not
       add to their misery or expenses.”


15.   The aforesaid observations would show that objection as to

admissibility of secondary evidence can be considered even at stage

of final judgment, however, as long as objection to admissibility of

secondary   evidence    persists,   Court   may     tentatively       mark

documents for identification and only when Court is satisfied that

rigors of Section 65 of Indian Evidence Act are successfully passed

over by party relying upon secondary evidence, admit document in
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evidence. The corollary of discussion above is that in present case,

Trial Court will have to consider first if disputant bank has made

out case for admitting secondary evidence in pleading or evidence

affidavit.       If Court admits documents then only petitioners can

proceed to cross examination.


16.     In light of aforesaid observations, this Court finds that

application below Exhibit-41 filed on behalf of petitioners has been

rightly declined consideration being premature. Hence, no case is

made out to cause interference under Article 227 of Constitution of

India.


17.     In result, Writ Petition stands dismissed.


18.     Needless        to state   here that   petitioners’     objection        to

admissibility of loan documents shall be considered and decided by

Trial Court at appropriate stage and unless such an objection is

decided, Trial Court shall not admit documents in evidence or rely

on contents of photo copies of documents produced by disputant in

form of secondary evidence.


19.     Rule stands discharged.



                                          (S. G. CHAPALGAONKAR)
                                                   JUDGE
Devendra/January-2026