Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1081/20(Suit 7748/97)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1081/2020
(CNR NO.MHCC01003069 2020)
IN
L.C. SUIT NO.7748/1977
Mohanmmed Raza ..Applicant/
Ori. Plaintiff
In the matter between :
Mohammed Raza and Ors. ...Plaintiffs
V/s.
Mohamedali Khalooi Tafti and Ors. .. Defendants.
Appearances :
Adv. Arvind Giriraj a/w Dhanashree Gaikaiwari i/b M/s. Bilawala & Co.
for plaintiff.
Adv. Rahul Mestry for defendant nos.5 to 10 and 13.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 26.10.2021.
ORDER
1. The plaintiff has filed instant Notice of Motion seeking
permission to file additional affidavit of evidence and to file certain
documents on record.
2. It is contended by the plaintiff that, he has filed instant suit
for dissolution of partnership. It is contended that, he is legal heir of
original plaintiff. In the past, several correspondences were exchanged
between the parties and their advocates. But those documents and facts
inadvertently were missedout as documents were old and not
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traceable. Those documents and correspondences are very crucial
documents. The documents were not traceable as same were part of the
correspondence file and were not in the same bunch as other
documents.
3. It is further submitted that, some of office staff of the
advocate are changed and therefore those documents were not
traceable. However, subsequently after speaking to some erstwhile staff,
whereabout of the documents are finally traced, but after filing of the
affidavit of evidence and compilation of documents.
4. It is contended that, crossexamination of plaintiff's witness
is yet to begin. Therefore, no harm or prejudice will be caused to the
defendants, on the contrary if the plaintiff is denied to file additional
evidence and documents, a great prejudice will be caused to him.
Therefore, he prayed for allowing the present Motion.
5. The Motion is opposed by defendant nos.5 to 10 and 13 by
filing say. It is contended that, the plaintiff when filed Writ Petition
challenging the order refusing to lead secondary evidence, Hon'ble High
Court did not grant any permission to file additional Examinationin
chief. The plaintiff's case is not to bring certain documents on record by
way of subsequent event of filing of earlier affidavit and compilation of
documents, instead the plaintiff very callously submitted that he was
unable to locate and trace the alleged documents and facts
inadvertently. In fact, the plaintiff has not explained the reason for
inability to produce the documents at the first instance at the time of
filing his affidavit of Examinationinchief. The plaintiff admitted that,
the alleged documents were all the times in his possession. However,
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the ground for not being able to locate and trace out the alleged
documents is false, frivolous and vexatious. The plaintiff failed to
mention how the alleged documents now came to be located and traced
out by him. The conduct of the plaintiff is not only suspicious but
grossly negligent. Therefore, the plaintiff does not deserve any relief as
prayed.
6. It is further contended that, none of the facts stated
concerning tracing of old documents are to the personal knowledge of
deponent and hence cannot allow the said document to be admitted
based on the averments by him alone. There are no averments to
establish genuineness of the documents sought to be introduced as
secondary evidence. The plaintiff failed to produce any documentary
evidence supporting his reasons. The plaintiff further submitted that
the documents sought to be produced are photocopies. Hence, there is
no substance in the Motion and same needs to be dismissed at the
threshold.
7. Heard both sides. Perused Motion and reply. Admittedly,
the matter is at the stage of Examinationinchief of the plaintiff, which
is not yet completed and cross is yet to begin. The plaintiff by way of
additional affidavit in lieu of Examinationinchief wanted to produce
certain documents, which, according to him, are necessary. I find
pleadings with respect to the said correspondences in the plaint. In
view of Order 7 Rule 14(3) of CPC, the plaintiff can be allowed to file
those documents on record, with additional affidavit.
8. I am of the view that as crossexamination is yet to begin,
the defendants will have an opportunity to crossexamine the witness
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and hence, no prejudice will be caused to the right of the defendants.
On the contrary, if the plaintiff is refused to produce those documents,
the plaintiff will be put to loss. Therefore, I am of the view that, the
plaintiff can be allowed to file additional affidavit along with
documents as prayed for. Admissibility and relevancy of those
documents can be decided at an appropriate stage. Thus, I proceed to
pass following order :
ORDER
1. Notice of Motion No.1081/2020 is allowed in terms of prayer
clause (a).
2. Plaintiff is allowed to file additional affidavit along with
documents as per list.
3. The plaintiff to bear costs of Motion.
4. Notice of Motion is disposed of accordingly.
sd/
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 26.10.2021 Greater Bombay.
Dictated on : 26.10.2021
Typed on : 27.10.2021
Signed on : 28.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
28.10.21, at 2 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 26/10/2021
JUDGMENT/ORDER signed by P.O. on 28/10/2021
JUDGMENT/ORDER uploaded on 28/10/2021
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