The main legal point established is that the foundational facts necessary for admitting secondary evidence must be fulfilled, and the form of the secondary evidence is not material.

1. Heard.

2. Rule. Rule made returnable forthwith.

3. Heard finally by consent of learned counsel appearing for the parties.

4. By this petition, the petitioners-original plaintiffs have challenged the legality and correctness of the order dated 20th July, 2015 passed by the Joint Civil Judge, Senior Division, Nagpur, below Exh.209 in Special Civil Suit No.126/2006 thereby allowing the application for adducing the secondary evidence in respect of Will dated 6.11.1997 and also the order passed by the same Court on 2nd September, 2015 refusing to review the order dated 20th July, 2015.

5. The petitioners filed civil suit being Special Civil Suit No.126/2006 seeking reliefs of declaration and permanent and mandatory injunction. In this suit, the respondent Nos.1 to 6 are the original defendants. The respondents appeared before the trial Court and filed their written statement. The respondent Nos.1 to 3 along with their written statement also filed counter claim seeking 1/4th share in the suit property. They also filed an application for amendment of their written statement and counterclaim which came to be allowed by the trial Court. Upon completion of the pleadings issues were framed and the petitioners led their evidence. When the case was pending at the stage of respondents/defendants' evidence, the respondent Nos.1 to 3 moved an application under Section 65 of the Indian Evidence Act, 1872 (in short, “the Evidence Act”) for permission to lead secondary evidence in respect of photostat copy of Will of late Smt. Sushila wd/o. Kashinath Subhedar dated 6.11.1997. The application was marked as Exh.209. It was claimed in the application that the original Will was handed over by late Smt. Sushila Subhedar to her son late Shri Sunil Subhedar and its copies were supplied to her other sons which fact was mentioned in the Will. One of the sons to whom such a copy was supplied was the respondent No.4 Shri Subhash Subhedar. The respondent Nos.1 to 3 claimed that the respondent No.2 had searched belongings of late Shri Sunil Subhedar for the original Will, however, could not find it. The petitioners filed their reply to the application marked as Exh.209 thereby strongly opposing it. They contended that it was contrary to the mandate of Section 65 of the Evidence Act. However, after hearing both sides, learned Joint Civil Judge, Senior Division, Nagpur allowed the application by his order passed on 20th July, 2015. The review of this order was sought by the petitioners, but it was turned down by the learned Joint Civil Judge, Senior Division, Nagpur by his order passed on 2nd September, 2015.

6. Being aggrieved by both these orders, the petitioners are before this Court through this petition.

7. I have heard Shri Bhutada, learned counsel for the petitioners, Shri S.P. Dharmadhikari, learned senior counsel along with Shri Gharote and Shri A.M. Deshpande, learned counsel for the respondent Nos.1 to 3.

8. Learned counsel for the petitioners submits that the impugned orders are bad in law for the reason that even though the condition necessary for adducing of secondary evidence, the condition of proving of foundational facts of existence of a document and its loss or destruction, has not been fulfilled by the respondent Nos.1 to 3. He further submits that the trial Court has erred in law by only saying that prima facie there might be in existence the alleged Will dated 6.11.1997 when in fact the law requires an unequivocal finding regarding satisfaction of the Court that the original document does exist or does not exist owing to its loss or destruction. He submits that the stands taken by the respondent Nos.1 to 3 and respondent No.4 are contradictory and the respondent No.4 by his own admission ought to have been held as not speaking the truth before the Court. He points out that in the agreement to sell dated 4th November, 2005, in respect of which a declaration that it is bad in law has been sought, executed between the respondent Nos.1