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2008 Supreme(Bom) 1509
2009(1) ALL MR 609
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(PANAJIBENCH)
A.P. LAVANDE, J.
Shri. Menino Fernandes - Appellant
Vs.
Smt. Dipika Solanki - Respondent
Writ Petition No.575 of 2008
Decided on : 17th October, 2008.
Mr. NITIN SARDESSAI with Mr. DEEP SHIRODKAR, Advocates for the Petitioner.
Mr. SUDIN USGAONKAR with Ms. RAJANI KAMAT, Advocates for the Respondent.
Headnote:Evidence Act (1872), S.65(c) –In a case seeking eviction, recovery of possession and mesne profits made by the deceased, plaintiff husband is allowed to lead secondary evidence is allowed with respect of the leave and license agreement and reply notice on the ground of strained relations with his wife in whose possession the originals are there under Section 65©, but secondary evidence of legal notice is not allowed without complying with Section 66.
Certainly. Based on the provided legal document, here are the key points:
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The case concerns a dispute over eviction, possession, and mesne profits, with the plaintiff being the legal representative of the deceased wife, Philomena Fernandes (!) (!) .
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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 (!) (!) .
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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 (!) (!) .
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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 (!) .
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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 (!) (!) .
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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 (!) (!) .
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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 (!) (!) .
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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 (!) .
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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 (!) .
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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 (!) .
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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 his deceased wife, were strained and that even a suit for divorce was filed. The original plaintiff, in support of her case, relied upon the following three documents:
(i) Agreement of Leave and Licence dated 10.09.1995.
(ii) Legal notice dated 20.3.1996 with acknowledgment card.
(iii) Reply of defendant dated nil.
5. When the matter came up for evidence of the plaintiff, the plaintiff filed an application dated 24.07.2008 seeking to adduce secondary evidence in respect of above referred three documents on the ground that originals of the said documents, were not passed on to him by his wife Philomena and as such he was not in possession of the originals of the said documents. The application was opposed by the defendants and by the impugned order, the Trial Court rejected the application holding that no case was made out by the defendant for leading secondary evidence. The Trial Court held that none of the clauses namely (a) to (g) of Section 65 of Evidence Act, was attracted and as such the plaintiff could not be permitted to lead secondary evidence. According to Mr. Sardessai, learned Counsel for the petitioner/ plaintiff, the copies of the above referred three documents were produced at the stage of production of the documents in the suit. This position has not been disputed by Mr. Usgaonkar, learned Counsel appearing for the defendant/respondent.
6. Mr. Sardessai, learned Counsel appearing for the petitioner submitted that the case of the plaintiff comes under clause (c) of Section 65 of the Evidence Act and. Therefore, the Trial Court has erred in not permitting the plaintiff from leading secondary evidence. Mr. Sardessai further submitted that in the written statement filed by the defendant, the existence of above referred three documents has not been seriously disputed by the defendant. In support of his submission, the Trial Court ought to have permitted the plaintiff to lead secondary evidence. Mr. Sardessai placed reliance upon following judgments :
i) Bibi Aisba Vs. Bibas S. S. M. Avaqaf reported in AIR 1969 SC 253.
(ii) Sayed Mujawar Vs. Khatunbi Gani reported in 2000(1) Goa L.T. 268.
7. Per contra. Mr. Usgaonkar, learned Counsel for the defendant/respondent submitted that the Trial Court has not committed any jurisdictional error in rejecting the application filed by the plaintiff seeking permission to lead secondary evidence. According to Mr. Usgaonkar the case of the plaintiff is not covered under Section 65 of the Evidence Act. The learned Counsel further urged that in any case, in so far as document at serial No.(ii) mentioned in paragraph 4 above, since the plaintiff is relying on a copy of notice addressed to the defendant without complying with Section 66 of the Evidence Act, the plaintiff is not entitled to lead secondary evi
