Shri. Praveen Jeevraj Khandelwal And ANR. v. Shri. Shivprasad Mohanlal Tiwari And ANR.

Sherla V.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4685 OF 2017 Shri Praveen J. Khandelwal & Ors.

... Petitioners Vs.

Shivpasad M. Tiwari & Anr.

... Respondents Mr.K.I. Khandelwal for the Petitioners Mr.Niranjan Mogre i/b R.G. Shinde for Resp. Nos.1 & 2 CORAM: Mrs.MRIDULA BHATKAR, J.

DATED: JUNE 28, 2017 P.C. :

1.

Rule. Rule made returnable forthwith. By consent, the petition is heard finally at the stage of admission. 2.

In this Writ Petition, the order dated 9.3.2017 passed by the learned Civil Judge Senior Division, Pune, below exhibit 146 in Special Civil Suit No.1284 of 2006 is challenged. The petitioners are the original plaintiffs, who filed a suit for specific performance on the basis of the unregistered agreement of sale dated 17.9.2003. It is their claim that the said agreement of sale was only notarised and possession of the property was handed over to them. Per contra, the defendants have denied the execution of the

alleged agreement of sale at any time and has also contended that possession of the suit property is taken forcibly from them by the plaintiffs and they have has also filed a counter claim for possession in the same suit.

3.

The evidence of the plaintiffs is over. The original copy of the said agreement of sale is not with the plaintiffs. As per the evidence of the plaintiffs, the original copy is with the respondents i.e., the defendants and they are not producing it. So, they have examined the Notary with whom the document was notarised, however, the said notary gave evidence that he has lost the register of that day and so, he is unable to produce anything. 4.

Under such circumstances, the plaintiffs sought permission under section 65 of the Evidence Act to lead secondary evidence i.e., true photocopy of the said agreement of sale. Then, the plaintiffs moved an application that the photocopy of the said agreement which they had tendered at the time of his evidence, is to be accepted. The said application was contested by the other side. The trial Court after considering the submissions of both the parties, has rejected the said application and did not give permission to the plaintiffs to lead secondary evidence.

5.

The trial Court has mainly rejected the application because full and proper stamp duty was not paid on the document as is required under section 25 of the Bombay Stamp Act of 158 as it is a case of sale of immovable property. He also relied on section 17 of the Registration Act, which requires registration of immovable property when there is a transfer of right and interest and so also, section 49 of the Act which imposes a bar on the admissibility of unregistered document.

6.

The observation of the learned Judge that it should have been registered under section 17 as per the requirement of the Registration Act, cannot be faulted with. This is an application made under section 65 of the Evidence Act. This particular document can be exhibited and taken on record for collateral purpose only. The Court can look into the document for collateral purpose as the allegations are made in respect of forgery and nonexecution of the document itself. It is specifically noted that all the other contentions in respect of truthfulness of the document are kept open and the parties may lead evidence to that extent. They may put questions in the cross-examination and the defendants may put up their case in his evidence.

7.

Writ Petition is disposed of accordingly.

(MRIDULA BHATKAR, J.)