When a party can be permitted to adduce secondary evidence?

 On perusal of the records and the impugned order and taking note of the contentions of the learned Counsel, I find that in view of the fact that the petitioner had given a notice to the respondents to produce the originals of the said documents and as the respondents have not produced the originals, the petitioner is entitled to lead secondary evidence. Apart from that, in the pleadings referred to herein above, the existence of the said documents has not been disputed as contemplated in Section 65(b) of the Evidence Act, 1872. As such, the petitioner is entitled to lead secondary evidence in respect of the measurement sheets and bills referred to at serial no.2 in the list of documents. For the aforesaid reasons the learned Judge was not justified to pass the impugned order refusing leave to the petitioner to lead secondary evidence. Consequently, the impugned order passed by the learned Judge cannot be sustained and deserves to be quashed and set aside.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 475 of 2011

Decided On: 02.03.2012

Appellants: Eslie Noronha
Vs.
Respondent: J. Lambert Almeida

Hon'ble Judges/Coram:
F.M. Reis, J.

 Citation: 2012(4)ALLMR141

1. Heard Shri J. Godinho, the learned Counsel appearing for the petitioner and Shri Nigel Da Costa Frias, the learned Counsel appearing for the respondents. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondents waives service.

2. The above petition challenges the order passed by the learned Civil Judge, Senior Division, Margao dated 22/03/2011 in Regular Civil Suit No.502/2010/A whereby an application filed by the petitioner for leading secondary evidence came to be rejected.

3. Shri J. Godinho, the learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that the petitioner desires to adduce secondary evidence in respect of measurement sheets and bills which are relied upon by the petitioner at serial no.2 in the list of documents. Learned Counsel further pointed out that such measurement sheets and bills were prepared by the petitioner and submitted to the respondents. The learned Counsel further points out that the averment with regard to the existence of the said measurement sheets and the bills was pleaded at para 8 of the plaint and in the written statement the existence of the said documents has not been disputed. The learned Counsel further points out that in any event the notice under Section 66 of the Evidence Act was issued to the respondents to produce the originals of the said document and in view of the failure to do so the petitioner is entitled to lead secondary evidence. Learned Counsel, as such, submits that the impugned order deserves to be quashed and set aside.

4. On the other hand, Shri Nigel da Costa Frias, the learned Counsel appearing for the respondents has supported the impugned order and pointed out that though the existence of the said documents has not been disputed in the pleadings the respondents are disputing the authenticity and the correctness of the contents of the said documents. The learned Counsel appearing for the respondents has pointed out that the petitioners would have to prove the contents of the said documents in accordance with law. The learned Counsel also does not dispute that notice was also issued to the respondents by the petitioner to produce the originals of the said documents. The learned Counsel, as such, submits that no interference is called for in the impugned order.

5. On perusal of the records and the impugned order and taking note of the contentions of the learned Counsel, I find that in view of the fact that the petitioner had given a notice to the respondents to produce the originals of the said documents and as the respondents have not produced the originals, the petitioner is entitled to lead secondary evidence. Apart from that, in the pleadings referred to herein above, the existence of the said documents has not been disputed as contemplated in Section 65(b) of the Evidence Act, 1872. As such, the petitioner is entitled to lead secondary evidence in respect of the measurement sheets and bills referred to at serial no.2 in the list of documents. For the aforesaid reasons the learned Judge was not justified to pass the impugned order refusing leave to the petitioner to lead secondary evidence. Consequently, the impugned order passed by the learned Judge cannot be sustained and deserves to be quashed and set aside.

6. With regard to the contention of the learned Counsel appearing for the respondents that the petitioner would have to prove the contents of the said documents, needless to say that merely because the petitioner has been permitted to lead secondary evidence it would not by itself dispense the petitioner to prove the contents of the said documents. The petitioner will have to prove the contents of the documents in accordance with law. In view of the above, I pass the following order:

ORDER

(i) The impugned order passed by the learned Judge is quashed and set aside and the petitioner is permitted to lead secondary evidence in respect of measurement sheets and bills referred to in the list of documents at serial no.2, in the light of the observations made herein above.

(ii) Rule disposed of in the above terms.

(iii) Petition stands disposed of accordingly with no order as to costs.