Single judge allowed chamber summons seeking leave to record secondary evidence of original documents via photocopies annexed to plaint, finding possession was lost due to removal by defendant.
leave granted to record secondary evidence via photocopies of original documents annexed to plaint.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.1434 OF 2009
SUIT NO.2518 OF 2000
Bharturam G. Rana
...Plaintiff
Vs.
Savtridevi P. Rana and Ors.
...Defendants
Mr. M.S. Dehlvi for Plaintiff
Mr. P.N. Singh i/b. Vyas and Bhalwal for Defendant
Nos.1 and 2.
CORAM: V.M. KANADE J.
DATED: 9TH OCTOBER, 2009
P.C.
1.Heard the learned Counsel appearing on behalf of
the Plaintiff and the Defendant.
2.The Plaintiff has taken out this Chamber Summons
seeking leave of this Court to lead secondary evidence
and to permit him to rely upon the photocopies of the
original documents and letters and correspondence
which were annexed to the compilation of documents in
this suit and more particularly described in Schedule
�A� annexed to the plaint.
3.It is the case of the Plaintiff that all these
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documents were annexed by him to the plaint, which
were filed by him in the City Civil Court. It is
submitted that the original documents were kept in
the cupboard in the suit flat, however, when he had
gone out of station, according to him, the Defendant
broke open the lock of the said cupboard and removed
the original documents. He submitted that he had
filed a police complaint dated 20.11.1999 and asked
the police to direct the Defendant to produce the said
documents. Secondly, a letter which was written to
the Senior Inspector of Police, Tilak Nagar Police
Station, Chembur on 23.11.1999. He, therefore,
submitted that since these original documents were
removed by the Defendant and xerox copies were
already annexed to the plaint which is filed in City
Civil Court in S.C.Suit No.4596 of 1998, the Plaintiff
may be permitted to produce these documents as
secondary evidence.
4.The learned Counsel appearing on behalf of the
Defendant has vehemently opposed the said submissions
made by the learned Counsel for the Plaintiff. He
submitted that the said copies are the xerox copies
which were annexed, cannot be now produced as
secondary evidence. He further submitted that these
documents cannot be taken on record since they are
barred by limitation. Therefore, the Plaintiff should
not be permitted to rely on these documents. He
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further denied the allegations made by the Plaintiff
that the Defendant had removed these documents from
the Plaintiff�s cupboard.
5.In my view, since these documents were annexed to
the plaint filed by the Plaintiff in the City Civil
Court and later on a complaint was filed by the
Plaintiff with the Chembur Police Station, it does
appear that the said documents are no longer in his
possession. The existence of the said documents,
however, establish the fact that these documents were
annexed to the plaint filed in the City Civil Court.
Under these circumstances, therefore, the Plaintiff
has made out the case for bringing these documents by
way of record as secondary evidence. It is, however,
clarified that the Defendant is permitted to cross
examine the Plaintif in respect of these documents and
they will be taken on record subject to relevancy. The
probative value of these documents will be decided at
the time of hearing of the suit.
6.Chamber Summons is disposed of.
1 issue framed by the court
Whether the plaintiff is permitted to record secondary evidence of original documents alleged to have been removed by the defendant.
Bharturam G. Rana
Savtridevi P. Rana
V.M. Kanade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court