Heard Mr. Menezes, learned Counsel appearing on behalf of the petitioners and Mr. Mangeshkar, learned Counsel appearing on behalf of the respondents.

2. Rule. Rule made returnable forthwith. By consent heard forthwith.

3. By this petition, the petitioners, who are the defendants in Regular Civil Suit no. 46/2011/C, filed against them by the respondents (plaintiffs) have challenged the order dated 10/10/2013 passed by the learned Civil Judge, Junior Division, “C” Court at Panaji in the said Suit, thereby granting the application dated 20/09/2013 filed by the respondents for taking on record notarized copy of the declaration dated 06/07/1994 and to exhibit the same and read the same in evidence.

4. Issues were framed in the said suit and the matter was pending for evidence. The plaintiffs filed the said application dated 20/09/2013 for leave to produce the secondary evidence in the form of notarized copy of the declaration dated 06/07/1994, alleging that at the time of finalizing the affidavit-in-evidence to be filed before the trial Court, the plaintiffs realized that the original declaration dated 06/07/1994 was not found in the file. It was further alleged that the original declaration dated 06/07/1994 was misplaced and was not traceable and therefore, the plaintiffs wish to rely upon the secondary evidence.

5. By way of reply dated 03/10/2013, supported by affidavit of the petitioner no. 1, the petitioners had objected to the said application for production of secondary evidence on various grounds. It was alleged by the petitioners that the said declaration is a false and fabricated document and the plaintiffs before producing secondary evidence should prove the existence and execution of the said original document. They denied the existence of the original. It was alleged by the petitioners that the respondents had not proved as to how the said documents were misplaced or lost.

6. By impugned order dated 10/10/2013, the learned trial Court, while granting the said application, did not at all consider the provision of Section 65(C) of the Indian Evidence Act, in its right import. Though the Notary had not certified that he had compared the same with the original, the trial Court observed that it cannot be imputed that the notary had certified the copy to be true copy without seeing the original. It observed that Section 79 of the Evidence Act raises a presumption of genuineness of certified copies and that the genuineness of the said document, executed before a notary, otherwise can be decided on merits.

7. Mr. Menezes, learned Counsel appearing on behalf of the petitioners submitted that the learned trial Court has not been given any reasons as to why secondary evidence relating to the said declaration is allowed. He read out the provision of Section 65(C) of the Evidence Act. He relied upon the judgment of the Apex Court in the case of “J. Yashoda v/s. K. Shobha Rani”, [(2007) 5 SCC 730] and the judgment of the Andhra Pradesh High Court in the case of “Jaldu Ananta Raghuram Arya and others v/s. Rajah Bommadevara Naga Chayadevamma and others” [AIR 1958 Andh. Pra. 418 (V 45 C 122)]. According to the learned Counsel, these judgments were also cited before the trial Judge but they have not at all been considered nor even referred to by the trial Judge. He, therefore, urged that the petition deserves to be allowed.

8. Per contra, Mr. Mangeshkar, learned Counsel appearing on behalf of the plaintiffs submitted that there is mention of the said declaration dated 06/07/1994 made by the petitioner no. 1, in paragraph 15 of the plaint and the copy of the same was annexed to the plaint as Exhibit “D”. According to the learned Counsel, since the notarized copy of the said declaration was on record, the genuineness of the same could not be disputed on account of the provision of Section 79 of the Evidence Act and that even otherwise genuineness of the same can be decided on merits. He further submitted that the plaintiffs had cl