RAJEEV GANPAT MAYEKARversusBABULAL GANPAT PARDESHI DIED THROUGH HIS LEGAL HEIRS GOPAL BABULAL PARDESHI

2026:BHC-AUG:4175
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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                                WRIT PETITION NO. 9816 OF 2021

                                 RAJEEV GANPAT MAYEKAR
                                         VERSUS
                  BABULAL GANPAT PARDESHI DIED THROUGH HIS LEGAL HEIRS
                           GOPAL BABULAL PARDESHI AND OTHERS

                                                …
             Mr. Manoj U. Shelke – Advocate for Petitioner
             Mr. S.B. Bhapkar – Advocate for Respondents
                                                …

                                   CORAM         : SIDDHESHWAR S. THOMBRE, J.
                                   DATE          : 28.01.2026

             ORDER:
             1.     Heard learned Counsel for the respective parties.


             2.     The petitioner is aggrieved by the order dated 15.02.2020 passed

             below Exhibit-64 by the learned Joint Civil Judge, Senior Division,

             Bhusawal in Regular Civil Suit No.92 of 2012, whereby the application

             filed by the respondents/defendants seeking permission to lead secondary

             evidence of the agreement of sale dated 08.08.2005 came to be allowed.


             3.     Learned Counsel for the petitioner submits that the plaintiff has

             filed the Regular Civil Suit No.92 of 2012 before the Civil Judge, Senior

             Division, for specific performance of contract. Defendant No.1 had earlier

             filed an application under Order XI Rule 16 of the Code of Civil

             Procedure seeking production of the agreement of sale dated 08.08.2005.
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The learned Trial Court, by order below Exhibit-16, rejected the said

application. It is further submitted that thereafter the defendants moved

an application below Exhibit-64 under Sections 63 and 65 of the Indian

Evidence Act, seeking permission to lead secondary evidence. The said

application was opposed by the plaintiff contending that the agreement

of sale dated 08.08.2005 is an unregistered document, insufficiently

stamped, and therefore inadmissible in evidence. It was also contended

that the respondents/defendants never executed any such agreement in

favour of the plaintiff and that the plaintiff was never put in possession

pursuant thereto. Learned Counsel further submits that the trial has

already commenced and the suit is at the stage of plaintiff’s evidence and

therefore, at such a belated stage, the application ought not to have been

allowed.


4.    In support of his submissions, learned Counsel relied upon the

following judgments :

(a)   This Court (Bench at Bombay) in the case of Parasanbai Dhanraj

      Jain and Ors. Vs. Sunanda Madhukar Jadhav and Ors., in Civil

      Revision Application No.82 of 2016 decided on 10.11.2017.

(b)   This Court (Bench at Aurangabad) in the case of Ramdas Bhatu

      Chaudhary (since deceased through LRs.) Vs. Anant Chunilal Kate,

      in Second Appeal No.972 of 2004 decided on 27.07.2006.

(c)   This Court (Bench at Nagpur) in case of Ganpat Pandurang
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       Ghongade and Ors. Vs. Nivrutti Pandurang Ghongade, in Second

       Appeal No.427 of 1992 decided on 14.03.2008.


5.     In the case Parasanbai      (supra) paragraph 11, which reads as

under:-

     11.   I have recently set out the law on this (Order dated 3rd
     November 2017 in Writ Petition No. 11151 of 2017, Karthik
     Gangadhar Bhat v Nirmala Namdeo Wagh & Anr. See also: Anandji
     Virji Shah & Ors v Ritesh Sidhwani & Ors, Chamber Summons No.
     1153 of 2015 in Suit No. 395 of 2007, decided on 27th June 2016.;
     Ajaykumar Krishnaprasad Seth v Maya Ramesh Belvetkar & Anr,
     Chamber Summons No. 17 of 2016 in Testamentary Suit No. 18 of
     2003 in Testamentary Petition No. 628 of 2001, decided on 13th
     October 2016.; MMTC Ltd v Samarth Auto Care Pvt Ltd, Suit No. 427
     of 1995, order dated 1st October 2014.; Lajwanti v Jayshree P
     Madhwani & Ors, Testamentary Suit No. 6 of 2004, order dated 14th
     December 2016.; Sumati & Ors v Yashodhara & Ors, 2016(6) ALL MR
     507 (per Shukre J)). and I will say so briefly once again: either
     secondary evidence is led or it is not led. Either the provisions of
     Section 65 are met or they are not met. No permission of a Court is
     required to lead evidence of any kind. No judge in the subordinate
     judiciary to this High Court will hereafter will insist on any such
     application under any circumstances whatsoever. I do not think I can
     put it in any clearer terms than this. Any such order is wholly illegal
     and liable to be set aside. A copy of this order is now to be circulated
     to every Civil Judge in the State of Maharashtra. To clarify: in an
     evidence affidavit under Order 18, a witness may well say of a given
     document that he cannot prove it by direct evidence and then
     proceed to adduce the secondary evidence in compliance with
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     Section 65 of the Evidence Act. The trial court is to consider that
     evidence, viz., the reason given for not leading direct evidence, and
     the secondary evidence led, and is to then decide whether the
     secondary evidence led is sufficient. That is all. There is absolutely no
     question of an application, whether styled as an interim application
     or a 'MARJI' application, for 'permission' to lead secondary evidence.
     The Court cannot refuse that permission, and it cannot insist on an
     application for any such permission.



             In view of the above, this Court observed that no permission

of the Court is required to lead secondary evidence and that it is for the

trial Court to appreciate whether the requirements of Section 65 of the

Evidence Act are satisfied after evidence is adduced.


6.     In the case of Ramdas (supra) paragraph 10, which reads as

under :

      10.   As referred in aforesaid paragraphs of this judgment,
      document Article "D" is on record. The learned trial Court had
      given liberty to the defendants to prove said document in
      accordance with the provisions of the Indian Evidence Act,
      1872 (“Evidence Act”) - I have put a specific query to the
      learned Counsel for the appellants as to whether this
      document is referred to in the evidence of plaintiff. He is
      unable to point out from her evidence that she had referred to
      this agreement of sale. I myself has also examined the
      evidence of plaintiff, which is in vernacular. However, I could
      not get reference of this agreement of sale in her evidence. The
      parties on issue, have to produce primary evidence in the
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Court. The primary evidence means a document itself and has
to be produced in the Court for inspection of the Court. Said
provision is laid down under Section 62 of the Evidence Act.
Leading secondary evidence is made permissible under certain
circumstances. It is provided under Section 63 of the Evidence
Act and it reads as under:
63.   Secondary Evidence. Secondary Evidence means and
includes
(1) certified copies given under the provisions hereinafter
contained ;
(2)   copies made from the original by mechanical processes
which is themselves insure the accuracy of the copy, and copies
compared with such copies;
(3)   copies made from or compared with the original;
(4)   counterparts of documents as against the parties who
did not execute them;
(5)   oral accounts of the contents of a document given by
some person who has himself seen.
      Now, turning to the facts of the present case and on
examination of agreement of sale Article 'D", I find that the
said document is not compared with the original by any
authority and no such endorsement is appearing on such
document. It is also not clear that under which mechanical
process, this document is procured by the defendants and
there is no proof regarding accuracy of the photostat copy in
relation to the original copy of the document. It is also not
established by the defendants that this document was in
possession of the plaintiff and production thereof is denied by
the plaintiff. In absence of preparation and endorsement
regarding verification of the document. It cannot be said that
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the defendants have legally established/proved document
Article "D".
      The cases in which secondary evidence relating to the
documents may be given have been listed under Section 65 of
the Evidence Act. Such evidence can be tendered of the
existence, condition or contents of a document. If it is
established by a party to the suit or proceeding that when the
original is shown or appears to be in possession or power of
the person against whom the document is sought to be proved
or of any person out of reach of or not subject to process of the
Court or of any person legally bound to produce it, and when
after the notice as mentioned in Section 66, such a person does
not produce the said document. Section 65(b), (c), (d), (e), (f)
and (g) also details the contingencies, where in secondary
evidence can be lead. In the present case I am wary of the fact
that the notice was given by defendants to the plaintiff. It is
clear from the notice Exhibit 92 given by the defendants to the
plaintiff that the plaintiff has denied possession of the said
document i.e. agreement of sale dated 15-10-1984. The
defendants have not led a foundation in their pleadings i.e. the
written statement that the said agreement was executed by
deceased Bhatu in favour of the plaintiff on 15-10-1984 and
terms and conditions of such agreement agreed between the
defendants as well as the plaintiff were embodies in the
"Agreement" and said "Agreement" is in possession or power of
the plaintiff. In absence of any foundation under the pleadings,
in my view, subsequent notice Exhibit 92 given by the
defendants looses its importance. However, said notice was
spontaneously replied by the plaintiff, denying the possession
of such an agreement of sale. In this fact situation, it cannot be
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     said in the present case that the said agreement of sale was in
     possession of power of the plaintiff. In the present case, said
     document is set up against the plaintiff. The plaintiff is not
     accepting existence of such an agreement of sale.
           Clause (c) of Section 65 of the Evidence Act refers to the
     destruction or loss of such original document. This clause also
     provides that if secondary evidence can be lead if party
     offering such evidence of its contents cannot produce the
     document within reasonable time. However, such inability
     must not be arising from such party's own default or neglect.
     In the present case, there is no evidence on oath led on behalf
     of the defendants regarding such destruction or loss of
     agreement of sale dated 15-10-1984 and therefore, this
     photostat copy Article "D" cannot be read and/or is not
     admissible in evidence. Looking to entire scheme of Section 63
     to 66 of the Evidence Act, I am of the opinion that the
     document marked by Article "D" cannot be treated to be
     secondary evidence and justifiably has not been accepted by
     the first Appellate Court.


            In this case, this Court examined the nature of secondary

evidence and held that unless foundational facts as required under

Sections 63 to 66 of the Evidence Act are established, such secondary

evidence cannot be accepted.


7.    In the case of Ganpat (supra) paragraph 13, which reads as under:-

     13.   Exh. 38 as also Exh. 47 are secondary evidence. There is
     no evidence on record to show that original was not available.
     On the contrary, the trial Court has already recorded a finding
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     that it is in possession of respondent. The lower appellate
     Court has not considered this aspect at all. On the strength of
     oral evidence of brother Kisan, the lower appellate Court has
     found the contents of Exh. 47 to be more correct and therefore
     for this reason only it has refused to act upon Exh. 38.
     However, it has overlooked provisions of Sections 65 and 66 of
     Indian Evidence Act. Until and unless there was a leave sought
     to tender secondary evidence and leave was granted, no
     Secondary evidence could have been looked into. Exh. 47
     being secondary evidence, could not have been looked into at
     all by lower appellate Court. The logic behind the arrangement
     as found by learned lower appellate Court in Exh. 47 is already
     considered by me above. The arrangement allegedly made in
     favour of present respondent does not appear to be consistent
     with the earlier part of the document. However, it cannot be
     forgotten that Exh. 47 is only a xerox copy. Whether the
     alleged portion is an alteration or not also cannot be
     conclusively decided as original document has not come on
     record. It is a well known fact that in the process of preparing
     xerox copy, there can be several manipulations and hence it is
     unsafe to act upon said xerox copy.

             It was held that in absence of proof regarding non-

availability of the original document, secondary evidence cannot be acted

upon.


8.      As far as the judgment in Parasanbai (supra) is concerned, it

pertains to the issue whether a Court can insist upon an application

seeking permission to lead secondary evidence. The said judgment does
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not lay down that secondary evidence must automatically be accepted

without proof. As regards Ramdas (supra) and Ganpat (supra), the said

judgments deal with the admissibility and proof of secondary evidence

after it is led, whereas in the present case, the impugned order merely

permits the respondents/defendants to lead such evidence.


9.    In the present case, the respondents/defendants specifically

pleaded that the agreement of sale dated 08.08.2005 was executed

between the parties and that the original document is in possession of the

petitioner/plaintiff, whereas the respondents/defendants possess only a

photocopy. It is also an admitted position that the photocopy of the

agreement was produced at the time of consideration of the application

for temporary injunction. The learned Trial Court has considered that the

earlier order below Exhibit-16 pertained to production of documents,

whereas the present application relates to leading secondary evidence.

The   Trial    Court   has   rightly       observed      that     it    is      for     the

respondents/defendants to establish the existence, execution and

contents of the document by leading secondary evidence in accordance

with law.


10.   Merely      because      the         application          filed         by        the

respondents/defendants has been allowed, it does not mean that the

document stands proved. The petitioner/plaintiff shall have full

opportunity to cross-examine the witnesses, challenge the admissibility
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and dispute the genuineness of the document. The Trial Court shall

decide the evidentiary value of the document at the appropriate stage.


11.      In view of the above, no perversity is found in the order dated

15.02.2020 passed below Exhibit-64 by the learned Joint Civil Judge,

Senior Division, Bhusawal in Regular Civil Suit No.92 of 2012 warranting

interference under writ jurisdiction.


12.      Hence, the Writ Petition stands dismissed.


13.      There shall be no order as to costs.



                                             [ SIDDHESHWAR S. THOMBRE ]
                                                       JUDGE


Pooja Kale/