1. Heard Shri A.D. Bhobe, learned Advocate for the petitioner and Shri P. Kholkar, learned Advocate for the respondents.

2. Rule. Shri P. Kholkar, learned Advocate waives service on behalf of the Respondents.

3. This petition takes exception to the order dated 18/03/2017 pursuant to which the learned trial Court dismissed the application of the petitioner seeking leave to produce secondary evidence of a notarized copy of the statement of accounts.

4. Heard Shri A.D. Bhobe, learned Advocate for the petitioner who invited attention to the statement of accounts and submitted that an endorsement was made by Savio, since deceased, predecessor of the respondents at the foot of the statement in the course of his business transaction with the petitioner. The petitioner had filed an application to produce secondary evidence and in which a clear assertion was made that the notarized copy of the statement of accounts was produced on record alongwith the plaint. The respondents had objected to the application on the premise that in the absence of such a document, it could not take a plea of leading secondary evidence and besides the statement that the original statement of accounts appears to have been misplaced or lost was vague and did not entitle the plaintiff to lead secondary evidence. The trial Court by the order under challenge proceeded on an assumption that the petitioner wanted to produce the printout of the statement of accounts and in that view of the matter proceeded to record so in the impugned order by loosing sight of the essence of the application. The case of the petitioner was clearly covered under section 65(c) of the Evidence Act and therefore the impugned order had to be quashed and set aside and leave granted to the petitioners to produce the secondary evidence on record.

5. Shri P. Kholkar, learned Advocate for the respondents submitted that there was no averment in the plaint qua the statement of accounts and/or the endorsement made by the said Savio. There was also no reference to the statement of accounts 4 WP No.828 of 2017 bearing the signature of Savio in the plaint. The plaintiff had approached the Court with unclean hands inasmuch as though the impugned order was passed on 18/03/2017, the petitioner had moved the application before the trial Court on 17/04/2017 and which fact was suppressed from this Court while filing this petition in September, 2017. There was no infirmity with the impugned order and hence, the petition was liable to be dismissed. He placed reliance in J. Yashoda v/s. K. Shobha Rani [(2007(5) SCC 730] in support of his case.

6. A cursory perusal of the pleadings forming a part of the petition would reveal that the petitioner had averred at paragraph 3 of the plaint that the late father namely Savio of the defendants i.e. the present respondents was carrying on the business of shrimp farming, used to purchase shrimp feed from the petitioner and he used to make the said purchases on a credit basis. The petitioner had further averred that he was liable to pay an amount of Rs.5,72,956.54 and in that context placed reliance on the statement maintained by the petitioner of the purchases made by late Savio and forming an integral part of the plaint at Annexure P1(Colly). It is in that context that the petitioner sought leave of the trial Court to produce the notarized copy of the statement of accounts on record as secondary evidence since it apparently bore out the noting and the signature of the said Savio. The respondents 5 WP No.828 of 2017 while filing their written statement in defence had not denied the fact that a notarized copy of the statement of accounts was produced on record by the petitioner which is relevant for the case of the petitioner. The case of the respondents was simpliciter one of denial of the entire case set up by the petitioner.

7. Chapter V of the Evidence Act on the aspect of documentary evidence provides in terms of Section 61 that the contents of the documents