Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.MHCC010015222019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.583 OF 2019
IN
SUIT NO.8606 OF 1993
Salim Mohammed Daudani. ... Plaintiff
Versus
Nandlal Gokul Kharwar (Since Deceased),
Smt. Dharmadevi Nandlal Kharwar and
6 others. ... Defendants
Mr. Bharat A. Punekar and Mr. Thackeray, Advocate for plaintiff.
Mr. Baptist D'Souza, Advocate for defendants.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 08th March, 2019.
ORAL ORDER
Notice of Motion is taken out to grant liberty to the
plaintiffs to lead secondary evidence in respect of documents produced
by him at Sr. Nos.1 and 2 in compilation Exh.4.
2. It is the contention of plaintiffs that document at Sr. No.1
is certified copy of registered Deed of Assignment dated 29.04.1969
executed between him and Jivraj Kurji Valji. Original of said Deed of
Assignment is not traceable, so, he has obtained certified copy of said
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2 NM 583/19 in
Suit 8606/93
document from Joint District Registrar of Mumbai. The document at Sr.
No.2 is photo copy of order dated 10.09.1990 passed by Judge of Small
Causes Court, Mumbai, in injunction notice No.1379 of 1990. Original
of said order is not traceable. Plaintiffs have obtained photocopy of said
order under mechanical process and preserved the same. Accordingly,
they prayed for grant of permission to lead secondary evidence in
respect to above referred documents.
3. The defendants filed their reply to notice of motion and
resisted the same. It is contended that notice of motion is taken out to
delay the proceeding and unlawfully gain royalty at the cost of
defendants. The Plaintiffs have not made out case for admitting those
documents by way of secondary evidence. They have not laid
foundation for adducing secondary evidence relating to those
documents. In light of these contentions, it is prayed that notice of
motion be dismissed.
4. Perused notice of motion, affidavit in support of it, reply of
defendants, documents at Sr. Nos.1 and 2 filed below list, Exh.4. Heard
respective counsel for parties.
5. It is settled law that permission of the Court is not required
to adduce secondary evidence. However, the concerned party has to lay
foundation for adducing secondary evidence in light of provisions of
Sec.65 of the Evidence Act. In present case, in relation to document at
Sr. No.1 of compilation, Exh.4 plaintiff has laid foundation to adduce
secondary evidence, but, same was not marked exhibit. Therefore,
plaintiff has filed present notice of motion. It is pertinent to note that in
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affidavit of evidence P.W.1 Salim Daudani has specifically stated that
original Deed of Assignment dtd. 29.04.1969 is not traceable. That
being so, foundation is laid for adducing secondary evidence in relation
to document at Sr. No.1 filed below list, Exh.4. Therefore, I am inclined
to mark said document as exhibit.
6. So far as document at Sr. No. 2 is concerned, it is
photocopy of order dtd. 10.09.1990 passed by Judge of Small Causes
Court, Mumbai in injunction notice no.1379 of 1990. Plaintiff has
stated that original of said order is not traceable. He has not produced
any document from the concerned Court showing that Record &
Proceedings relating to said matter is not traceable. He has mentioned
that he has obtained photo copy of said order under the mechanical
process and preserve the same. However, he has not clarified status of
certified copy from which he had allegedly taken copy by mechanical
process. As already pointed out plaintiff has not produced any
document showing that Record & Proceedings relating to said matter is
not traceable. That being so, the plaintiff can obtain certified copy of
aforesaid order from concerned Court and file it on record. The plaintiff
has not laid proper foundation to adduce secondary evidence in
relation to document at Sr. No. 2, so, I am not inclined to mark exhibit
document at Sr. No. 2 of list, Exh.4. Hence, pass following order.
O R D E R
1. Notice of Motion No.583 of 2019 is partly allowed in following
terms.
2. Document at Sr. No.1 i.e. certified copy of Deed of assignment
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dated 29.04.1969 filed below list, Exh.4 is hereby ordered to be
marked exhibit.
3. Accordingly, Notice of Motion No.583/2019 is disposed off.
(M. T. Asim)
Judge
Date : 08.03.2019. Gr. Bombay
Typed on : 08.03.2019.
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.03.2019, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
08.03.2019
JUDGMENT/ORDER signed by P.O.
on
11.03.2019
JUDGMENT/ORDER uploaded on 11.03.2019
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