- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS No. 1216 OF 2009 IN SUIT No. 1059 OF 1982 Mrs. Pushpa M. Chhabria ... Plaintiff Vs. Mrs. Kamala B. Chhabria & Ors. ... Defendants Mr. Pradeep Sancheti i/b Bilawala & Co., for the Plaintiff. Mr. R. C. Nichani, for Defendant Nos. 2A, 2B and 4 to 7. Mr. U.J. Makhija, for defendant Nos. 1 and 3A to 3C. *** CORAM : V. M. KANADE, J. DATE : AUGUST 20, 2009. PC :- 1. Heard the learned counsel appearing for the plaintiff and the defendants. This Chamber Summons is taken out by the plaintiff seeking leave of this Court to produce the additional document namely plaint in L.C. Suit No. 1379 of 1976 filed in the Bombay City Civil Court at Bombay. The evidence of the plaintiff is over and a statement was made by the learned counsel appearing on behalf of the plaintiff before the Court that affidavit in lieu of evidence of next witness, if any, be filed on or before 23rd July 2009. Witness was discharged on that date. Thereafter the present Chamber Summons was filed. In the Chamber Summons it is stated that a reference to this document has been made in the affidavit-in- - 2 - rejoinder dated 7th February 1983, filed by the plaintiff in Notice of Motion No. 969 of 1982. It is stated in the affidavit in support of the Chamber Summons that file containing certain relevant papers which included the copies of the orders passed by the City Civil Court Bombay and other documents were kept in the office of the husband of the plaintiff. It is further stated that on or about 1991/92 her husband and son shifted their office to 57 Sutar Chawl, near Zaveri Bazar and in this process of shifting the office, the said file containing the documents was misplaced and even after taking a thorough and diligent search, said file could not be traced. Thereafter Advocate M/s. Sunil & Co. advised the plaintiff to apply for certified copies of the suit proceedings and accordingly application was made on 12th June 2009 for the certified copies of the proceedings of the said suit. It is case of the plaintiff that the said certified copies of plaint and proceedings of the L.C. Suit No. 1379 of 1976 is a material piece of evidence since it contains clear sworn statements of all the three owners i.e. plaintiff and defendant Nos. 1 and 2. It is therefore, submitted that plaintiff may be permitted to produce the certified copy of the plaint. 2. The learned counsel appearing for the defendant No. 2A, 2B and 4 to 7 vehemently opposed this request made by the counsel appearing on behalf of the plaintiff. It is submitted that the plaintiff was aware of the existence of these documents on 7th February 1983 when the affidavit-in-rejoinder was filed by her. No explanation has been tendered for the delay caused in production of these documents. It is submitted that the certified copy of the plaint - 3 - was received on 17th June 2009 and evidence of the plaintiff was closed on 21st July 2009. It is submitted that though this document was in their possession from 17th June 2009, no attempt was made to produce the same. It is further submitted that no reference of the said document i.e. plaint is made in the present suit and therefore, the plaintiff may not be permitted to produce the said document at such a belated stage, since it is intention of the plaintiff to protract the proceeding which is pending since 1982. 3. The learned counsel appearing on behalf of defendant Nos. 1, 3A, 3B and 3C submitted that prior to deletion of the provisions of Order 13, Rule 2 a party has an opportunity to explain the delay caused in filing the documents. He submitted that by virtue of deletion of the said provisions, the plaintiff did not have a right to produce the documents at the belated stage after the examination, and cross-examination of the plaintiff by the defendants is over. It is submitted therefore, that the Chamber Summons should be dismissed. 4. In the present case suit is filed by the plaintiff for partition of the suit property, which is described the Schedule, at Exhibit “A” to the plaint, in equal shares and for separate possession of 1/3rd share of the suit property and for compensation for wrongful, use, possession and enjoyment of the plaintiffs portion of the suit property and for mesne profits. The suit of which plaint is sought to be produced by the plaintiff, was filed for declaration that the notice dated 9th February 1976 issued by the defendants should be declared as bad in law, illegal and not - 4 - maintainable and not binding on the plaintiffs. The description which is given in the said property is identical to the property, described in the present plaint. The said piece of evidence is therefore, a material piece of evidence and in my view, in the interest of justice it would appropriate that plaintiff should be permitted to produce the said document. It is no doubt true that in paragraph 4 of the affidavit-in-support it is stated that documents were misplaced and lost and thereafter application was made on 12th June 2009 and the delay has not been sufficiently explained. However, the fact remains that evidence of the plaintiff was over on 21st July 2009 and immediately thereafter present Chamber Summons is filed. Though the provisions of Order 13, Rule 2 are deleted, this Court while exercising the jurisdiction under section 115 of the Code of Civil Procedure, can permit a party to produce the document which is relevant for the purpose of deciding the case on merits, and in accordance with the law. Therefore, the submission made by the counsel appearing for defendant Nos. 2A, 2B & 4 to 7 is not accepted. The Chamber Summons is allowed in terms of prayer Clause (a) and (b) subject to payment of costs quantified at Rs.3,000/- to be paid by the plaintiff to each of the defendant Nos. 1 and 2A & 2B, and Rs.5,000/- towards the Commissioner’s costs, within a period of one week from today. However, the defendant shall be permitted to further cross-examine the plaintiff. The Chamber Summons is accordingly disposed of in above terms. Sd/- [ V. M. KANADE, J.]