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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.8442 OF 2019

1.

Shaikh Aftab Ahmed

PETITIONERS

s/o Shaikh Akhlaquie Ahmed

Age – 55 years, Occ – Business,

R/o Delhi Gate, Bashira Building,

2.

Gazi Zubair Ahmed

s/o Gazi Zahi Ahmed

Age – 50 years, Occ -Business,

R/o Manzoorpura, Aurangabad

Petitioner No. 1 and 2 through GPA

Shaih Shahid Shaikh Aftab Ahmed

Age – 35 years, Occ – Business,

R/o Delhi Gate, Aurangabad

VERSUS

1.

Bhimrao s/o Sandu Waghmare

RESPONDENTS

Age – 70 years, Occ – Agri/Pensioner,

R/o House No. 5/15/29-P

Bhimnagar, Bhausingpura,

Aurangabad

2.

Tanabai w/o Bhimrao Waghmare

Age – 45 years, Occ – Household

R/o As above

3.

Pratik s/o Bhimrao Waghmare

Age – 29 years, Occ – Education

R/o As above

4.

Komal d/o Bhimrao Waghmare,

Age – 27 yeas, Occ – Education

R/o As abvoe

5.

Swapnalata d/o Bhimrao Waghmare,

Age – 25 years, Occ – Education,

R/o As above

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6.

Prajatka d/o Bhimrao Waghmare,

Age – 24 years, Occ – Education,

R/o As above

....…

Late Mr. P. M. Shah, Senior Advocate

Mr. S. V. Adwant, Amicus curiae

Mr. Ajit D. Kasliwal, Advocate for the petitioner

Mr. A. M. Gholap, Advocate

Mr. Ameya Sabnis, Advocate

Mr. S. V. Dixit, Advocate

Mr. Pratap P. Mandlik, Advocate

.......

[CORAM : SUNIL P. DESHMUKH AND

SMT. VIBHA KANKANWADI, JJ.]

RESERVED ON : 16

^th SEPTEMBER, 2021

PRONOUNCED ON : 22

^nd SEPTEMBER, 2021

JUDGMENT (PER SUNIL P. DESHMUKH, J.):

1.

The question under present reference

“ Whether any litigant can be permitted to lead secondary evidence as

a matter of right without the leave of the Court and is not required

to make an application to seek such permission from the Trial Court

before leading secondary evidence ? ”

has been vexing the courts from quite some time, especially trial

courts and often even appellate courts.

2.

While the question had been bobbing up, on and off, a

definitive edict had emerged from a decision given by a learned

single judge of this court at the principal seat, twice observing

that decisions, showing it may not be necessary to apply and/or

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seek permission of court before leading secondary evidence, in

the field tend to be ignored further observing that it is the right

of litigant to lead secondary evidence.

3.

The learned Single Judge, in “Karthik Gangadhar Bhat V/s

Nirmala Namdeo Wagh and Others”, AIR 2018 Bom 32 : 2018 (1) Mh.L.J.726 :

MANU/MH/2605/2017 referring to an order in “Indian Overseas Bank V/s

Trilok Textile Industries and Others” MANU/MH/1069/2006 : AIR 2007 Bom

24, has considered, it is settled law that no application for

permission to lead secondary evidence is desirable nor is

maintainable. It is always open to a party to lead secondary

evidence before trial court without application and had quoted

paragraph 2 from the order in “Indian Overseas Bank” (supra). He

has referred to a few decisions, wherein he had followed

observations in aforesaid order.

4.

Buttressing his judgment, he has also referred to decision

in the case of “Sumati and Others V/s Yashodhara and Others” 2016 (6) ALL

MR 507 wherein, it has been observed to the effect that,

secondary evidence if is to be admitted, form of secondary

evidence is not material and can be in any form and that three

conditions which constitute fundamental facts, must be fulfilled

while pressing into service such evidence, and if any one of them

is not proved, secondary evidence cannot be admitted.

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5.

He has observed that applications for secondary evidence

are misconceived and not maintainable and that result of

disallowing application is more serious because evidence in

question is wholly excluded from consideration without slightest

examination of proposed secondary evidence. He has discussed

the issue, inter alia, to following effect in paragraphs 9