Oral Judgment:
1. On 28/01/2016, a notice for final disposal was issued in this petition. The record shows that the respondents were also represented by their Counsel on 04/05/2016. However, today, none appears for the respondents. I have heard the learned Counsel for the petitioners and the petition is being disposed of finally.
2.The petitioners are the original plaintiffs, who are challenging the order dated 28/12/2015 passed by the learned Civil Judge, Junior Division at Panaji in Regular Civil Suit No.93/2010/D, whereby their application (Exh.31), for permission to lead secondary evidence, by production of negatives of some photographs, produced on record, has been rejected. The learned Counsel for the petitioners has placed reliance on the decision of this Court in Suresh Pandharipande vs. Parag Pandharipande; 2016(2) ALL M R 563, in order to submit that the existence of original document and its loss, are the two factors necessary, to permit the petitioners to lead evidence. He, therefore, submits that the application for permission to lead secondary evidence, could not have been decided, before the petitioners leading evidence. He submits that merely because the negatives (which are primary evidence of the photographs) were not mentioned in the list of reliance, would not be sufficient to hold that no such negatives ever existed, which is one of the reasons given by the learned Trial Court, while rejecting the application.
3.I have considered the circumstances and the submissions made. In the case of Suresh Pandharipande (supra), this Court had relied on its earlier decision in the case of Bank of Baroda, Bombay Vs. Shree Moti Industries, Bombay and others; 2009 (1) Mh.L.J. 282, in which it has been, inter alia, held that while considering the prayer for grant of permission to lead secondary evidence, two things are required to be proved namely, (i) there must be evidence of existence of original document and (ii) there must be evidence of its loss. In Suresh Pandharipande (supra), this Court found that these aspects cannot be proved unless the party concerned is permitted to enter the witness box and/ or examine witnesses.
4.Coming back to the present case, the learned Trial Court has found that the negatives were not mentioned in the list of reliance and the affidavit of the photographer, who had allegedly clicked the photographs was not filed and it is possible that the photographs might have been clicked with digital camera and as such, affidavit of the photographer was necessary. Basically, on this premise, the application has been rejected.
5.Considering the decision of this Court in the case of Suresh Pandharipande and Bank of Baroda, Bombay (supra), I find that it would be appropriate if the learned Trial Court considers the application Exh.31 after the petitioners are allowed to lead evidence which would be in consonance with the ratio as laid down in the aforesaid cases. Hence, the following order is passed:
(i) The petition is allowed.
(ii) The impugned order is set aside.
(iii) Application Exh. 31 is restored back to file of the learned Trial Court, to be decided in accordance with law, after the petitioners are permitted to lead evidence.
(iv) It is made clear that this Court has not expressed any opinion on merits of the application.
(v) Rule is made absolute in the aforesaid terms, with no order as to costs.