NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3419/2011
Baba Jasbirsing Kalsi S/o Pyarasing Kalsi, Jaripatka, Nagpur.vs. Arvind S/o Krushnarao Waghmare, R/o Nagpur.
CORAM : R. M. SAVANT J.
DATED : 21.07.2011
O R A L J U D G M E N T
1) Rule with the consent of the parties made returnable forthwith and heard.
2) The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 07/07/2011 2107wp3419.11.odt 2/3 passed by the learned 4th Joint Civil Judge, Senior Division, Nagpur, by which order the application at Exhibit-45 filed by the petitioner for leading secondary evidence in support of the documents which have been enlisted in the list of documents to the above petition came to be rejected. However, the trial Court in the concluding paragraph of the said order has observed as follows -
"It is, however, clarified that, if the original of which the copy forms a part of such documents enlisted vide Exh. 147, is available before this Court, in Spl. Civil Suit No. 926/2006, Baba Jasbirsingh -Vs- Vasantrao & others, such copy after examining and comparing from the original, may be admitted in evidence. The application accordingly stands disposed of."
3) The documents in question i.e. the Item Nos.1 to 15 are part of the record of Special Civil Suit No.926/2006, the petitioner sought to produce the certified copies of the said documents, which are already exhibited in the said suit. The trial Court has rejected the said application for possession to lead secondary evidence on the ground that the petitioner has not laid a proper foundation to lead secondary evidence in respect of the said matter.
4) Having perused the impugned order and having regard to Section 74 of the Indian Evidence Act, which inter alia discloses as to which 2107wp3419.11.odt 3/3 documents are public documents and Section 79 which raises a presumption as to genuineness of the certified copies. In my view, since the documents at Item Nos.1 to 15 are the certified copies issued by the concerned Court, having regard to the said statutory provisions, they ought to have been exhibited in the said suit, the respondent appearing in person admits to the said position that they are the certified copies of the documents, which have already been exhibited in Special Civil Suit No.926/2006. In that view of the matter, the impugned order dated 07/07/2011 is required to be set aside and is accordingly set aside and the petitioner would be permitted to produce the certified copies of those 15 documents i.e. at Item Nos.1 to 15. The trial Court on such production would thereafter exhibit the said documents in the said Regular Civil Suit No.1155/2006.
5) Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.
JUDGE
KHUNTE
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WRIT PETITION NO.3419/2011
Baba Jasbirsing Kalsi S/o Pyarasing Kalsi, Jaripatka, Nagpur.vs. Arvind S/o Krushnarao Waghmare, R/o Nagpur.
CORAM : R. M. SAVANT J.
DATED : 21.07.2011
O R A L J U D G M E N T
1) Rule with the consent of the parties made returnable forthwith and heard.
2) The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 07/07/2011 2107wp3419.11.odt 2/3 passed by the learned 4th Joint Civil Judge, Senior Division, Nagpur, by which order the application at Exhibit-45 filed by the petitioner for leading secondary evidence in support of the documents which have been enlisted in the list of documents to the above petition came to be rejected. However, the trial Court in the concluding paragraph of the said order has observed as follows -
"It is, however, clarified that, if the original of which the copy forms a part of such documents enlisted vide Exh. 147, is available before this Court, in Spl. Civil Suit No. 926/2006, Baba Jasbirsingh -Vs- Vasantrao & others, such copy after examining and comparing from the original, may be admitted in evidence. The application accordingly stands disposed of."
3) The documents in question i.e. the Item Nos.1 to 15 are part of the record of Special Civil Suit No.926/2006, the petitioner sought to produce the certified copies of the said documents, which are already exhibited in the said suit. The trial Court has rejected the said application for possession to lead secondary evidence on the ground that the petitioner has not laid a proper foundation to lead secondary evidence in respect of the said matter.
4) Having perused the impugned order and having regard to Section 74 of the Indian Evidence Act, which inter alia discloses as to which 2107wp3419.11.odt 3/3 documents are public documents and Section 79 which raises a presumption as to genuineness of the certified copies. In my view, since the documents at Item Nos.1 to 15 are the certified copies issued by the concerned Court, having regard to the said statutory provisions, they ought to have been exhibited in the said suit, the respondent appearing in person admits to the said position that they are the certified copies of the documents, which have already been exhibited in Special Civil Suit No.926/2006. In that view of the matter, the impugned order dated 07/07/2011 is required to be set aside and is accordingly set aside and the petitioner would be permitted to produce the certified copies of those 15 documents i.e. at Item Nos.1 to 15. The trial Court on such production would thereafter exhibit the said documents in the said Regular Civil Suit No.1155/2006.
5) Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.
JUDGE
KHUNTE
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