Final Order 1

Order Details: Chamber summons
Pdf Text: CS No. 56918 in Suit No.866800
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.569 OF 2018
IN
SUIT NO. 8668 OF 2000
HIGH COURT SUIT NO. 3143 OF 2000)
(CNR NO.MHCC010039742018)
Mrs. Jayshree Nemchand Vira &Others ….Plaintiff
Versus
Mr. Laxmichand Lalji Poladia .... Defendant
Appearance:
Shri. R.J. Thakkar, Advocate for plaintiff.
Shri. Cherim Lapazhiya i/b Niranjan & Co., Advocate for
defendant.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 15/03/2019
ORAL ORDER
1) The Chamber Summons is filed by the plaintiff to
exhibit the document appearing at Sr. No.3 i.e. uncertified copy
of statement signed by the defendants which has been produced
by the plaintiff along with the compilation of document at Exh.8.
The Chamber Summons is supported by affidavit of Shri. Paras
Nemchand Vira. He on oath stated that he filed suit in the month
of May 2000 against the defendants seeking the decree in sum of
Rs.2,88,750/. The Principal amount is Rs.2 Lac. The leave was
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granted to the defendants to contest the suit by filing written
statement. The defendants have filed written statement on
23/11/05.
2) The witness of plaintiff has stated in the evidence
that the said document is in possession of the defendant. He gave
notice dated 10/03/15 to produce original document. The
defendant replied that he does not possess the said document.
3) Application (Exh.12) was filed. The defendant filed
reply. He filed rejoinder to the said reply. The said application
was heard and rejected by order dated 06/10/15. The plaintiff
preferred appeal from order bearing No.83/16. The appeal was
not maintainable. Therefore, it was ordered that he should prefer
writ petition. Though his earlier application in the secondary
evidence is dismisses. However, in view of the recent ratio in the
authority reported in “Karthik Gangadhar Bhat Vs. Nirmala
Namdeo Wagh, 2017(6) Bom. C.R. 554” that no application
has required to lead secondary evidence and it is always open for
the parties to lead secondary evidence before the court. Hence,
prayed to allow the Chamber Summons.
4) The defendant filed reply by way of affidavit
Laxmichand Lalji Poladia. The defendant stated that the
application is not tenable. It is barred by principle of res
judicature. The plaintiff already approached Hon'ble High Court.
The relief was not granted. The plaintiff sought leave of the
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Hon'ble High Court to withdraw the appeal with liberty to file
appropriate proceeding and said leave was granted to the
plaintiff.
5) The defendant denied that he has admitted
statement in his written statement. However, his contention is
that statement is made before the police authorities under force
and coercion and not binding on him. The existence and
execution of the original document is to be proved before the
secondary evidence is admitted. Hence, prayed to reject the
Chamber Summons.
6) Heard advocate Shri. R.J. Thakkar for plaintiff and
advocate Shri. Cherim Lapazhiya for defendant. Perused
application and say. I have also gone through the record.
7) The plaintiff has earlier preferred Exh.12 application
to lead secondary evidence. After hearing both the parties my
Predecessor has rejected the application. The plaintiff desires to
lead the secondary evidence of the statement of the defendant
recorded before the police in criminal inquiry. In para 6 of said
order my Predecessor has held that,
“the so called document is in criminal court. The plaintiff
can bring certified. Even original can be called from
criminal court to prove copy of the plaintiff. The
application does not fall under Section 65 of Evidence Act.
The original is not in possession of defendant. There is no
admission of the document. Therefore, he cannot be
permitted to produce uncertified copy by way.”
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8) The statement of the defendant recorded before the
police officer is not disputed by the defendant but it is his
contention that it is under coercion as he was in police custody.
Therefore, the said statement cannot be relied.
9) The plaintiff has filed the Chamber Summons on the
ground that there is an authority of Hon'ble High Court reported
in 'Karthik Gangadhar Bhat Vs. Nirmala Namdeo Wagh,
2017(6) Bom. C.R. 554'. The ratio of the authority is in respect
of that the application is not required to lead secondary evidence.
It is open to the parties to lead secondary evidence before the
court.
10) The plaintiff is relying on the copy of the statement.
The writ petition was filed against the said order dated 06/10/15
at Exh.12. The writ petition was disposed of. The plaintiff was
given liberty to approach the appropriate forum as the appeal
was not maintainable. However, in the order at Exh.12 the
opportunity is given to the plaintiff to call the said proceeding
and or file the certified copy.
11) I have also gone through the authority relied by the
plaintiff. It is not disputed that the said document is not in
existence. The plaintiff has to bring on record the said document
as it is in the proceeding of the criminal court. Hence, pass
following order:
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ORDER
1. The plaintiff is at liberty to file certified
copy of the statement.
2. With this direction the Chamber
Summons is disposed of.
(S.S. Nagur)
Date : 15/03/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 15/03/2019
Transcribed on : 26/03/2019
Signed on : 26/03/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
20.05.2019 : Mrs. S.A. Shekade (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 15.03.2019
Order
Judgment/Order signed by the P.O. on : 26.03.2019
Judgment/Order uploaded on : 20.05.2019
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