Bombay High Court

LAXMAN DEVIDAS DOIPHODEversusANURADHA LAXMAN BHALERAO

Disposal: DISPOSED OFF
Bench: SIDDHESHWAR SUNDARRAO THOMBRE

Holding

The trial court erred in rejecting the application; the petitioner is entitled to lead secondary evidence under Section 65 of the Indian Evidence Act.

Summary

The petitioner, Laxman Devidas Doiphode, filed a writ petition challenging the trial court's order rejecting his application to lead secondary evidence of sale deeds that were lost during house construction. The trial court held that the petitioner failed to provide details or evidence of a diligent search for the original deeds, and thus denied the application. The respondent supported the trial court's decision, arguing that the petitioner gave no reasons for the loss. The High Court, however, held that under Section 65 of the Indian Evidence Act, the petitioner was entitled to present secondary evidence when the original documents are unavailable, and the trial court's refusal was contrary to law. Consequently, the High Court set aside the trial court's order, allowed the writ petition, and directed the trial court to decide the underlying suit within one year.

Issues considered

Whether the trial court was correct in rejecting the petitioner's application to lead secondary evidence of the lost sale deeds under Section 65 of the Indian Evidence Act.

Legislation cited

Indian Evidence Act, 1872 — s. 65

Subjects

secondary evidence
Indian Evidence Act
sale deed
lost documents
writ petition
civil procedure
evidentiary rules

Judgment

2026:BHC-AUG:2502

1 WP / 9993 / 2023

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

1033 WRIT PETITION NO. 9993 OF 2023

LAXMAN DEVIDAS DOIPHODE
VERSUS
ANURADHA LAXMAN BHALERAO

...
Advocate for petitioner : Mr. Dhananjay A. Mane
Advocate for the respondent : Mr. S.M. Kamble
...

CORAM : SIDDHESHWAR S. THOMBRE, J.

DATE : 17 JANUARY 2026

PER COURT :

Heard learned counsel for the parties.

2. By way of present petition, the petitioner assails the order
dated 05.04.2023 passed below Exhibit – 89 by the Joint Civil Judge
Junior Division, Jintur in RCS No. 121 of 2012, whereby the application
filed by the petitioner - plaintiff seeking permission to lead secondary
evidence, came to be rejected.

3. In the application, it is specifically stated that the sale
deeds No. 1390/1992 and 1358/1993 were misplaced while
constructing the plaintiff’s house and, therefore, he sought permission
to lead secondary evidence.

4. The trial Court rejected the said application by observing
that the plaintiff has merely stated that he has lost the original sale
deed during construction. It was the duty of the plaintiff to give details
in respect of original sale deeds but he failed to do so and he vaguely
2 WP / 9993 / 2023

submitted that the sale deeds have been lost. He also failed to state
that he made appropriate search for the original sale deeds and
exhausted all the sources for the search. Based on these observations,
the application was rejected.

5. Learned counsel for the respondent supports the order
passed by the trial Court by submitting that the plaintiff ought to have
given some details about the sale deeds and that those were not
traceable. It was expected on the part of the plaintiff to give reasons
and as no reasons were given, the learned trial Court has rightly
rejected the application.

6. Having heard the learned counsel for the respective
parties, once the petitioner - plaintiff has come with a specific case that
the original sale deeds were misplaced during the construction of
house, an opportunity ought to have been given to him to lead the
secondary evidence in view of section 65 of the Indian Evidence Act.
The trial Court should have permitted to lead the secondary evidence.
Learned trial Court recorded a finding that the petitioner has not given
details about the said sale deeds, such observations are contrary to
section 65 of the Indian Evidence Act and, therefore, I am inclined to
allow the present petition by setting aside the order passed below
exhibit - 89.

7. Writ Petition is allowed. dated 05.04.2023 passed below
Exhibit – 89 by the Joint Civil Judge Junior Division, Jintur in RCS No.
121 of 2012, is quashed and set aside.
3 WP / 9993 / 2023

8. Both the learned counsel submitted that RCS No. 121 of
2012, may be expedited.

9. Trial Court shall decide the RCS within a period of one
year from today.

[ SIDDHESHWAR S. THOMBRE ]
JUDGE

arp/

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