IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. NOTICE OF MOTION No. 602 of 2008 IN SUIT No. 223 of 1989 The Board of Trustees of the Port of Bombay .. ..Plaintiffs. Vs. Cummins Limited and Ors. ..Defendants. Mr U. J. Makhija i/b Motiwalla & Co., Advocate for the Plaintiff. Mr V. N. Bodke i/b Chitnis Vaithy & Co.,Advocate for Defendant No.1 in support. Mr I. A. Bootwala i/b Bootwala & Co.,Advocate for Defendant No.2. CORAM: V.C.DAGA,J. CORAM: V.C.DAGA,J. CORAM: V.C.DAGA,J. DATED: 11.03.2008. DATED: 11.03.2008. DATED: 11.03.2008. P.C.:- P.C.:- P.C.:- 1. Notice of motion No.602 of 2008 is not on today’s board. By consent of parties taken on board. 2. Heard learned counsel for the applicant on the notice of motion. This notice of motion is taken out by the defendant no.1 seeking permission to lead secondary evidence. Affidavit is also filed in support of motion. 3. In para 2 of the said affidavit the defendant no.1 has stated that the documents marked as Exhs.I to V annexed with the motion were misplaced. So far as Exh.I and II are concerned, they are the correspondence between defendant no.1 and their customers. So far as Exh.III is concerned this is a letter written to defendant No.2 by defendant no.1. Exhibit IV is a letter addressed to defendant Nos. 4 and 5 by defendant no.1. 4. So far as Exhs.I and II are concerned, I see no difficulty in granting prayer. Accordingly, defendant no.1 is permitted to lead secondary evidence with respect to the Exhs. I and II annexed to the motion. 5. So far as Exhs. III, IV and V are concerned, the defendants in the suit are party to the said documents. No notice to produce, as required under Section 66 of the Evidence Act, has been given by defendant no.1 either to the other defendants or the plaintiff, who are very much before the Court. Under these circumstances, in absence of compliance of the mandatory requirement of Section 65 (c) of the Evidence Act, leave to lead secondary evidence in respect of Exhs. III, IV and V cannot be granted. Prayer to that extent is rejected. 6. Motion is,thus, partly allowed and made absolute in terms of this order with no order as to costs. 7. Period is extended by another four weeks to enable the Commissioner to submit report. 8. Suit to come up on board after four weeks. JUDGE. JUDGE. JUDGE.