Full Judgment
(Prayer: This W.P. Filed Under Articles 226 and 227 Of The Constitution Of India Praying To Quash The Order, Dtd.17.10.11, Passed By The Court Of Xliii Additional City Civil And Sessions Judge At Bangalore On Ia No.10 In Suit Os No.7194/2004 Vide Annex-J And Allow This Petition.)
1. This writ petition is directed against the order dated 17-10-2011 passed by the Court below rejecting I.A.No.10 filed by the petitioners-plaintiffs under Sections 63, 64 and 65 of the Evidence Act seeking permission to lead secondary evidence. By this application the petitioners- plaintiffs prayed for allowing them to lead secondary evidence by producing photo copy of the memorandum of writ petition No.3033/1987. That application came to be rejected for the reasons stated in the order.
2. In the course of hearing of this petition, I called the Registrar Judicial to find out whether original memorandum of the writ petition is available on record. After enquiry, I was informed that the registry by mistake destroyed the original memorandum of writ petition. On the basis of the record that is available with the registry in respect of the said writ petition it revealed that the petitioner in the said writ petition i.e. respondent No.1 in the present writ petition had filed I.A.No.1/2013 seeking restoration of the said writ petition which had been dismissed for non-prosecution vide order dated 21-11-1994. The respondent No.1 had also placed a copy of the memorandum of the writ petition on record along with I.A.No.1/2013 since the original memorandum of writ petition was destroyed.
3. In view of these facts, as revealed in the course of hearing of this writ petition, learned counsel for the petitioners prays for withdrawal of this writ petition with liberty to the petitioners to file fresh application for similar relief after obtaining certified copy of the memorandum of writ petition filed by respondent No.1 along with I.A.No.1/2013. In all fairness, learned counsel for respondent No.1 has not opposed the prayer for withdrawal of the writ petition with liberty as prayed. In the circumstances, I am satisfied that the following order shall meet the ends of justice: 6
i) The writ petition is disposed of as withdrawn with liberty to the petitioners to seek permission of the trial Court to lead secondary evidence by producing the certified copy of the memorandum of writ petition No.3033/1987 filed by respondent No.1 along with I.A.No.1/2013.
ii) The petitioners to apply for certified copy of the memorandum of writ petition (W.P.No.3033/1987) filed by respondent No.1 along with I.A.No.1/2013 within one week from today.
iii) If the petitioners make an application, as aforementioned, the Registry is directed to issue certified copy of the memorandum of writ petition No.3033/1987 filed by respondent No.1 along with I.A.No.1/2013, within a period of one week from the date of application.
iv) It is open to the petitioners to approach the Court below seeking permission to produce certified copy of the memorandum of writ petition before the trial Court as secondary evidence and if the petitioners make any such application, the trial Court shall decide the same on merits in accordance with law.
v) All contentions of the parties insofar as admission of the secondary evidence is concerned, are kept open.
vi) The trial Court shall decide the question afresh, expeditiously.
With these observations, this writ petition is disposed of.