A.P.LAVANDE
Menino Fernandes – Appellant
Versus
Dipika Solanki – Respondent
Certainly. Based on the provided legal document, here are the key points:
The case concerns a dispute over eviction, possession, and mesne profits, with the plaintiff being the legal representative of the deceased wife, Philomena Fernandes (!) (!) .
The plaintiff sought to introduce secondary evidence of three documents—an agreement of leave and license, a legal notice, and a reply—on the grounds that the original documents were not in his possession due to strained relations with his wife and her failure to pass them on (!) (!) .
The Trial Court rejected the application to admit secondary evidence, holding that the conditions of Section 65 of the Evidence Act were not satisfied and that the case did not fall under clause (c) of that section (!) (!) .
The appellant argued that the case did fall under Section 65(c) because the originals were destroyed, lost, or unavailable for reasons beyond his default or neglect, notably strained relations and the original possession being with the wife (!) .
The appellate court analyzed the provisions of Section 65(c) and concluded that the circumstances—strained relations, non-possession of originals, and the filing of a divorce suit—supported the application for secondary evidence (!) (!) .
It was noted that the legal notice (document at serial No. (ii)) could not be admitted as secondary evidence without compliance with Section 66 of the Evidence Act, as the copy relied upon was not accompanied by the requisite proof of its authenticity (!) (!) .
The court emphasized that the factual background justified allowing secondary evidence for the agreement and reply documents, given the strained relations and the circumstances of non-possession (!) (!) .
The court also highlighted that prior procedural practices and the circumstances of the case supported the admission of copies as secondary evidence, especially since the original documents were not in the plaintiff's possession through no fault of his own (!) .
The order of the Trial Court was set aside to the extent it refused permission to lead secondary evidence for the documents at serial Nos. (i) and (iii), with liberty granted to the plaintiff regarding the legal notice, subject to law (!) .
The decision underscores the importance of considering the factual context, including strained relations and the unavailability of originals, when determining the admissibility of secondary evidence under Section 65(c) of the Evidence Act (!) .
The court directed the plaintiff to pay costs and scheduled the parties to appear before the Trial Court for further proceedings (!) (!) .
Please let me know if you need further analysis or assistance.
2. On 25th September, 2008, this Court issued notice to the respondent for final disposal of the petition at the admission stage. Hence. Rule. Heard forthwith.
3. By this petition, the petitioner challenges the order dated 14.08.2008 passed by the Civil Judge. Senior Division, Quepem in Regular Civil Suit No.38/1996/B. by which the application dated 24.07.2008 filed by the petitioner, has been dismissed. The petitioner is the plaintiff in the above referred suit filed against the respondent/defendant seeking eviction, recovery of possession and mesne profits.
4. Briefly, the facts leading to the filing of the present petition, are as under:
Smt. Philomena Fernandes, the wife of the present petitioner, filed the above referred suit seeking recovery of possession of the suit premises and mesne profits. The suit was contested by the - defendants. During the pendency of the suit, said Philomena expired and the present petitioner being her only legal representative, was brought on record. It is the case of the petitioner that the relations between him and
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