Moujam Khan Khaisar Khan Pathan v. Shabana Noor Mohammad Khan And ORS.

2026:BHC-AUG:20141

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 5 WRIT PETITION NO.4598 OF 2026 Moujam Khan Khaisar Khan Pathan and another.

VERSUS

Shabana Noor Mohammad Khan And Others.

...

Advocate for Petitioners : Mr. H.V. Tungar ...

CORAM : S. G. CHAPALGAONKAR, J.

Dated : April 27, 2026 ORDER :- 1.

Present writ petition takes exception to the order dated 7th April, 2026 passed by learned Civil Judge, Senior Division, Beed, below Exhibit-80 in Special Civil Suit No.5 of 2019, whereby petitioner's application seeking permission to lead secondary evidence has been disposed of in terms of the observations made therein.

2.

Petitioners are original defendants in Special Civil Suit no.5 five of 2019. Respondent nos.1 and 2 instituted the suit seeking decree of partition and separate possession in respect of land survey number 576 and house number 86/1 situated situated at Georai, District Beed. Petitioners/defendants filed written statement contending that during lifetime of their

father, he had given one Plot each to the plaintiffs out of survey no.576 and balance land was orally partitioned. Accordingly, a notarized document bearing no.7974 of 2014 was executed, photocopy of which was produced on record. Defendants searched for the original document, however, same is missing. 3.

Petitioners/defendants filed an application below Exhibit 80 under section 65 of Indian Evidence Act seeking permission to produce xerox copy of Sammati Patra of Hibanama/Partition Deed and lead secondary evidence in terms of Evidence Act. 4.

The Trial Court observed that a party is entitled to give secondary evidence in respect of the document which is lost, however, he will have to establish existence of such document and particulars of its loss. Party is entitled to lead evidence to make out case for leading secondary evidence, which can be considered at the time of final hearing.

5.

In case of Dhanpat Vs. Sheo Ram (Deceased) through Lrs. And others reported in AIR 2020 Supreme Court 2666 the provisions of section 65 of the Indian Evidence Act are elaborately discussed in paragraph no.20, which reads thus :- "20.

There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may

choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed." 6.

If aforesaid exposition of law is considered in consonance with the provisions of section 136 of the Indian Evidence Act, it is apparent that, if the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking. The illustration (b) under section 136 would clarify position.

7.

It is, therefore, clear that, if a party proposes to prove, by a copy, the contents of document said to be lost, the fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced. In case of Prasanbai Dhanraj Jain and others Vs. Sunanda Madhukar Jadhav and others reported in 2018 (1) Mh.L.J. 788, this Court observed in paragraph no.11 as under :- "11.

I have recently set out the law on this and I will say so briefly once again : either secondary evidence is led or it is not led. Either the provisions of Section 65 are met or

they are not met. No permission of a Court is required to lead evidence of any kind. No judge in the subordinate judiciary to this High Court will hereafter will insist on any such application under any circumstances whatsoever. I do not think I can put it in any clearer terms than this. Any such order is wholly illegal and liable to be set aside. A copy of this order is now to be circulated to every Civil Judge in the State of Maharashtra. To clarify : in an evidence affidavit under Order 18, a witness may well say of a given document that he cannot prove it by direct evidence and then proceed to adduce the secondary evidence in compliance with Section 65 of the Evidence Act. The trial court is to consider that evidence, viz.

, the reason given for not leading direct evidence, and the secondary evidence led, and is to then decide whether the secondary evidence led is sufficient. That is all. There is absolutely no question of an application, whether styled as an interim application or a 'MARJI' application, for 'permission' to lead secondary evidence. The Court cannot refuse that permission, and it cannot insist on an application for any such permission.

8.

In Light of the aforesaid legal position, the trial court is justified in saying that petitioners can lead evidence on compliance of the requirement under section 65 (c) of the Indian Evidence Act in support of their contention for acceptance of secondary evidence. Petitioners are, therefore, at liberty to lead such evidence during course of the trial and based on such evidence, the Trial Court would rule on acceptability of secondary evidence at the time of final order to be passed in the suit. Therefore, petitioners prayer seeking permission to produce and rely upon xerox copy of Sammati Patra of Hibanama/partition-deed is rightly deferred by Trial Court under the impugned order, thereby giving liberty to the

petitioners to lead evidence regarding compliance of mandate under section 65 (c) of the Evidence Act.

9.

In result, this Court finds no merit in the writ petition. Writ Petition stands rejected.

( S. G. CHAPALGAONKAR, J. ) AAA/-f ...