Om Prakash vs M/s Bothra Salt Works and Others

V.G. Palshikar, J.—The original suit was filed for specific performance and rendition of account. It was pleaded in the suit that the partnership was formed.

During the pendency of the suit, an application was filed for permission to lead secondary evidence to prove the agreement of the partnership on the allegation the document of partnership was in possession of the defendant and was deliberately not produced by them and, therefore, permission, to prove the document by leading secondary evidence was sought. It is submitted at the bar by the Learned Counsel appearing on behalf of the plaintiff that there is no written reply to this application. The learned Judge trying the suit dismissed this application on the ground that the counsel for the defendant alleges the documents to be forged one.

Genuineness of a document can be question only after evidence to prove it is led. The learned Judge while rejecting the application has prejudged the document, it is impermissible in law. The genuineness of the document or otherwise can be adjudicated upon only after the plaintiff is permitted to lead the evidence to prove that document.

In view of the fact that the averments regarding non-production of the document being uncontroverted, the learned Judge should have permitted the plaintiff to lead secondary evidence as prayed for. In the interest of justice, it is , therefore, necessary that this application is allowed.

The application is accordingly allowed. The plaintiff is permitted to lead secondary evidence to prove the agreements of partnership. The defendants shall be at liberty to lead such evidence as in necessary to disprove the document if the defendants so desire.

There will be no order as to costs.