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2007 Supreme(Bom) 856
Bombay High Court
R. M. SAVANT
YESHWANT RAMBHAU CHONDHE, TANAJI YESHWANT CHONDHE -Appeallant
Versus
VILAS BAPURAO SHINDE, VIJAYA VILAS SHINDE -RESPONDENTS
WRIT PETITION 7149 Of 2004
Decided On: 06/28/2007
S.M.Gorwadkar, V.B.NAIK
Headnote:Civil Procedure Code, 1908 - Section 11 - Evidence Act, 1872, Sections 63 and 65 - Suit for specific performance of agreements - Petitioner produced evidence affidavits and certified copies of documents - Request for exhibition of document - Granted - Petitioner’s application for leading secondary evidence - Rejected - Held - Having not challenged orders passed, plaintiff/petitioner cannot file fresh application - Order passed by trial Court just and proper. - The petitioners herein had produced the certified copies of the two documents vide Exhibit 177 and sought exhibition of the said documents in the said suit. The said prayer of the petitioners was opposed by the respondents herein who are the defendants by application Exhibit 179. The said application Exhibit 179 of the defendants came to be allowed and consequently the said documents were not exhibited. This is the first order which operates against the petitioners plaintiffs. The petitioners thereafter moved an application which was marked as Exhibit 185 for leading secondary evidence. The said application also came to be rejected as the trial Court was of the view that without complying with the directions contained in the order passed on Exhibit 179 the said application Exhibit 185 came to be moved by the plaintiffs.
The trial Court, however, while rejecting the said application observed that the case of the contesting respondents herein that res judicata was applicable could not be a countenanced at the said stage. Therefore, the order passed on Exhibit 185 is the second order which operates against the plaintiffs. It is significant to note that the plaintiffs have not challenged the said order on Exhibit 179 and the order passed on Ex.-185. The said orders, therefore, have become final insofar as exhibiting the said certified copies is concerned. The plaintiffs thereafter have filed an additional affidavit of the plaintiff No. 1(a) by which the foundation was sought to be laid for leading secondary evidence by them. The trial Court vide its order passed on the said application Exhibit 1 has come to a conclusion that the principles of res judicata are attracted and, therefore, the said Exhibit 1 filed by the petitioners plaintiffs was not maintainable. The trial Court was of the view that unless the orders on Exhibit 179 and Exhibit 185 were set aside the application Exhibit 1 was not maintainable. In Court view no fault can be found with the said reasoning of the trial Court. The proper course for the petitioners plaintiffs would have been to challenge the said orders passed on Exhibit 179 and Exhibit 185 and seek permission of the Court to lay a foundation for leading secondary evidence. Having not challenged the said orders passed on Exhibit 179 and Exhibit 185, in Court’s view, the petitioners plaintiffs were not entitled to file a fresh application. If the course adopted by the plaintiffs is to be accepted, it would lead to chaos as there would be conflicting orders on record in a proceeding. Therefore, as indicated hereinabove, the order passed by the trial Court taking into consideration the said aspect cannot be faulted with.
Evidence Act, 1872 - Sections 63 and 65 - Secondary evidence - Original of documents not produced - Copy thereof tendered - Party tendering it has to give satisfactory explanation by way of evidence of steps taken to find out original - An aspect of foundation being laid for not producing original and producing certified copies thereof. - Original of the documents is not produced but copy thereof is tendered, the party producing it has to give credible explanation by way of evidence of the efforts made about to trace the original. This would be an aspect of the foundation being laid for not producing the original and producing the certified copies thereof.
( 2 ) THIS petition filed under Article 227 of the Constitution of India raises an issue as to whether the petitioners herein, who are the original plaintiffs should be allowed to lead secondary evidence. The said issue arises in the context of the decision of the Trial Court who refused to exhibit the certified copies of the registered documents by rejecting the application of the petitioners-plaintiffs marked as Exhibit-1 vide the impugned order dated 22nd July, 2004.
( 3 ) THE factual matrix involved in the present petition is stated thus :-
a. The petitioners-plaintiffs and the respondents 18 to 25 herein have filed R. C. S. No. 1075 of 1996 in the court of the Civil Judge, Junior division, Pune claiming specific performance of the Agreements for sale dated 30th July, 1956 and 18th July, 1957 against the respondents 1 to 17 herein. b. The suit property is survey No. 12 and survey No. 171/4 admeasuring about 9 acres and 1 guntha at village Aundh, taluka and District Pune. The ancestor of the petitioners-plaintiffs late rambhau Haribhau Chondhe was the tenant in the said land. c. By the registered agreements between Rambhau Haribhau Chondhe and the owners, namely, deceased Bhikoba, deceased Vilas Bapurao Shinde with Ashok and Sambhaji agreed to sell the said property to the petitioners-plaintiffs. It was agreed that the said late Rambhau haribhau Chondhe would surrender his tenancy rights for effecting the sale. d. The possession of the suit property was to be given to the petitioners-plaintiffs by the said deceased Rambhau and confirmed by the deceased Bhikoba Shinde and Vilas Shinde with Ashok Shinde and Sambhaji Shinde. Since the petitioners-plaintiffs are in continuous possession of the same. e. The respondents 1 to 3 are the legal heirs of the deceased Tarabai while respondents 4 to 10 are the legal heirs of the deceased Bhikoba. f. It was agreed between the parties that the conveyance would be executed after the final settlement of the dispute with one Chunilal Lacchiram Khivsara and also with Yeshwant Ganpat Gaikwad in civil Suit No. 1254 of 1955. The respondents 1 to 10 herein had agreed to make the title clear and marketable. Since the Civil Suit No. 1254 of 1955 was decided finally on 11. 10. 1995, the petitioners-plaintiffs approached the defendants for execution of the conveyance of the suit property but the defendants 1 to 10 avoided to perform their part of the contract. The petitioners-plaintiffs, therefore, were constrained to file R. C. S. No. 1075 of 1996 on 16. 07. 1996 for specific performance of the said contract. In the said suit in the list of documents, a mention of the agreements dated 30. 07. 1956 and 18. 07. 1957 finds a place, as the documents on which the petitioners-plaintiffs would rely. However, there is no averment in the plaint as regards whether the petitioners-plaintiffs are in possession of the said documents or as to who is in the possession of the said documents. g. On behalf of the petitioners-plaintiffs, the petitioner no. 1 (a) herein filed his affidavit of examination-in-chief on 13. 11. 2003 and also filed certified copies of the registered agreements of sale dated 30. 07. 1956 and 16. 07. 1957 with list of documents, which was numbered as exhibit-177. The contesting defendants. e. respondents 1 to 10 herein filed an application at Exhibit-179 and prayed that the said certified copies of the registered Agreements of Sale dated 30. 07. 1956 and 16. 07. 1957 may not be exhibited. h. The petitioners-plaintiffs filed their say to the said Exhibit-179, which was marked as Exhibit-182 and pointed out that the affidavit of evidence indicates that the originals of the said documents are missing and are not traceable and, therefore, it was essential to lead secondary evidence of the said documents. The learned Civil Judge, Junior Division by order dated 02. 01. 2004 allowed exhibit-179. e objection of the defendants for e
