2025:BHC-AUG:26021

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.10251 OF 2024

Shafiyabegum w/o Shahanawaz Qureshi,

Age 66 years, Occ. Business,

R/o Milap Gadighar, Shiwaji Chowk,

Ambajogai, Tq. Ambajogai,

Dist. Beed ...Petitioner

Versus

1. Manisha w/o Ravindra Modi,

Age 53 years, Occu. Agriculture and Household,

R/o Modi Nagar, Ambajogai

Tq. Ambajogai, Dist. Beed

2. Ravindra s/o Banshilal Modi

Age 63 years, Occu. Business. R/o Modi Nagar, Ambajogai,

Tq. Ambajogai, Dist. Beed ...Respondents

…

Mr. G. G. Kadam, for the petitioner.

Mr. N. B. Khandare i/b. A. D. Gade for Respondent Nos.1 and 2.

…

CORAM : ROHIT W. JOSHI, J.

RESERVED ON : 24.07.2025

PRONOUNCED ON : 12.09.2025

JUDGMENT :-

1. The petitioners are defendants in Regular Civil Suit No. 77 of 2012 filed against them by the present respondents which is pending on the file of the learned Civil Judge, Senior Division, Ambajogai

Dist. Beed. The said Suit is pertaining to an immovable property occupied by the petitioners. The respondents have filed the suit seeking declaration that the petitioners are not licensees of respondent no.1 and the agreement of leave and license has come to an end and further that the agreement dated 03.10.1972 (07.10.1972) is canceled as non est and for decree for removal of temporary structure erected by the petitioners over the suit property and delivery of physical possession thereof.

2. The plaintiffs filed on record photostat copy of a document of leave and license dated 15.10.1972. It is their contention that the original document dated 15.10.1972 was lost and a photostat copies thereof was available with them. The plaintiffs had filed an application seeking permission to lead secondary evidence with respect to the said document dated 15.10.1972 vide Exhibit-44. The learned Trial Court rejected the said application for permission to lead secondary evidence vide order dated 27.07.2017. Amongst other grounds, the application is also rejected on the ground that the agreement of leave and license dated 15.10.1972 is not adequately stamped and since it is a photostat copy, it cannot be impounded. The learned Trial Court has placed reliance on judgments of the Hon’ble Supreme Court of India in the matters of Hariom Agrawal Vs. Prakash Chand Malviya - (2007) 8 SCC 514 and Smt. J. Yashoda Vs. Smt. K. Shobha Rani - AIR 2007 (SCW) 2713 respectively. The defendants have challenged the said order dated 27.07.2017 by filing a petition before this Court being Writ Petition No.2481 of 2018. The said petition was disposed of as withdrawn vide order dated 02.01.2020.

3. Thereafter, the plaintiffs filed another application vide Exhibit-162 inter alia praying for impounding the photostat copy of the agreement of leave and license dated 15.10.1972. The defendants opposed the said application by filing reply dated 17.02.2022. After hearing rival submissions, the learned Trial Court by placing reliance on the judgment of the Hon’ble Supreme Court in the matter of M. Chandra Vs. M. Thangamuthu (2010) 9 SCC (Online) 712 has held that the plaintiffs were entitled to lead secondary evidence with respect to the said document and for that purpose impounding of the document was necessary. The learned Trial Court has also observed that it is duty of the Court to impound the document which is not adequately stamped. The application was accordingly allowed. This order dated 03.08.024 is subject matter of challenge in the present petition.

4. The learned Advocate for the petitioners/defendants contends that the previous application filed vide Exhibit-44 seeking permission to lead secondary evidence with respect to agreement of leave and license dated 15.10.1972 was rejected by the learned Trial Court on several grounds including on the ground that the document was not adequately stamped and that photostat copy of the document could not be impounded. He contends that the petition preferred against the said order was unconditionally withdrawn and as such the plaintiffs we