Fairway Barge Operators Pvt. Ltd. vs J. and L. Marine Services Goa

F.M. Reis, J.—Heard Shri Menino Pereira, learned Counsel appearing for the petitioner and Mr. E.O. Mendes, learned Counsel appearing for the respondent. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondent waives notice.

Upon hearing the learned Counsel and on perusal of the record, the short point which requires consideration is, whether the learned Judge was justified to pass the impugned order dated 11th March, 2014, dismissing the application filed by the petitioner to lead secondary evidence? The learned Judge has passed the impugned order essentially on the ground that the petitioner has not explained the whereabouts of the originals of such documents. It is not disputed by Shri Mendes, learned Counsel appearing for the respondent that though the originals of such documents were not produced, nevertheless, the notarized certified copies of such documents were produced along with the plaint. The record also reveals that the existence of such documents has not been disputed by the respondent, though the veracity of such documents is being disputed by the respondent. Section 65(b) of The Indian Evidence Act, 1872 reads thus:

"65. (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;"

Since the existence of such documents is not disputed, secondary evidence can be permitted in terms of Section 65(b) of the Evidence Act. No doubt, the respondent has challenged the veracity and the contents of such documents, which aspects are left open to be examined by the learned Judge on its own merits, at the time of appreciation of the evidence in the suit. Merely allowing to lead secondary evidence, by itself, would not establish that the petitioner has proved the authenticity and/or contents of such documents. Keeping such issues open, I find that the impugned order passed by the learned Judge dated 11th March, 2014 deserves to be quashed and set aside. The petitioner is permitted to lead secondary evidence with regard to the Agreements dated 14th March, 2008 and 24th March, 2008. Subject to keeping the issue with regard to the contents or veracity of such documents open, to be examined on its own merits, the petition stands disposed. Rule stands disposed of accordingly.