Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3367-19 in Suit No. 3037-07
CNR NO.MHCC01920719
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3367 OF 2019
IN
L.C. SUIT NO. 3037 OF 2007
Backbay Properties Pvt. Ltd. …...Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ...... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 07th October, 2019.
Appearance:
Ld. Adv. Mr. P. D. Gandhy for the plaintiff.
Ld. Adv. Mrs. Tondwalkar for defendant/MCGM.
ORDER
1. Heard Learned Advocate for the defendant corporation and
Learned Advocate for the plaintiff.
2. The defendant corporation by this notice of motion seeks
permission of this Court to lead secondary evidence. It is submitted by
the defendant the documents are not traceable inspite of diligent
search. It is submitted that the available xerox copies may be permitted
to be tendered as evidence.
3. The notice of motion is objected by the plaintiff. It is contended
by the plaintiff the notice of motion does not disclose attempts by the
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2 NM 3367-19 in Suit No. 3037-07
defendant corporation to reconstruct the record as required under
Maharashtra Public Record Act. It is stated that the affidavit does not
disclose that the copies are taken from originals. It is submitted that the
notice of motion being devoid of merits, need not be entertained and
deserves to be dismissed.
4. It is not disputed that the documents must be proved only by
primary evidence. The exception carved out under Section 65 of the
Evidence Act permits a party to lead secondary evidence relating to the
documents. Secondary evidence may be given of the existence
condition or contents of a documents when the original has been
destroyed or lost or when the party offering evidence of its contents
cannot for any other reason not arising from his default or neglect
produce it in reasonable time.
In the present case, the record is alleged to be not traceable. The
statement is made on affidavit by the defendant. It is submitted that
the originals are lost. The said fact is deposed on affidavit by the
defendant.
5. The defendant seeks to produce on record the copy of Inspection
report dated 28.03.2007, the speaking / reasoned order dated
30.07.2007 and the copy letter received from E.E. (BP) City II with
letter vide EEB/1706/AA/ and remarks received from Assessment
Department.
6. The documents i.e. the notice and speaking order is already
served on the plaintiffs. So far as other remaining two documents are
concerned, the defendant need to be permitted to lead secondary
evidence. In the interest of justice, the following order is passed.
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3 NM 3367-19 in Suit No. 3037-07
ORDER
1. The Notice of Motion No. 3367/2019 is allowed.
2. The defendant corporation is permitted to lead secondary evidence
relating to the documents mentioned in the list Exh. 14.
3. The Notice of Motion stands disposed off accordingly.
(Sanjay N. Yadav)
Judge,
Date : 07.10.2019 City Civil Court, Mumbai.
Dictated on : 07.10.2019
Transcribed on : 09.10.2019
Signed by HHJ on : 19.10.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 22.10.2019 at 11.39 a.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
07.10.2019
JUDGMENT/ORDER signed by
P.O. on
19.10.2019
JUDGMENT/ORDER uploaded
on
22.10.2019
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