1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.136 of 2010 IN Suit No.717 of 2005 Morarji Hariram .. .. Plaintiff v/s. Neera Handa, daughter of Shri K.L. Handa & ors. .. .. Defendants Mr.Anirudha Joshi i/by M/s.L.J. Law for Plff. Mr.Prashant G. Karande for Deft Nos.1 to 3. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 12th April, 2010 P.C. : 1.The evidence of the Plaintiff is complete. The evidence of the Defendants is to begin. Time for Commission has expired. The Affidavit of examination- in-chief of the Defendants was made ready on 31.3.2008. List of documents of the Defendants was also made ready on 31.3.2008. The Defendants have applied for permission to file the Affidavit of examination-in- chief and to rely upon the documents in the list of documents. The Plaintiff opposes on the ground that till now that has not been filed and the documents have not been disclosed. The truth has to be brought on record. The Defendants must be entitled to rely upon 2 their documents. However, if the Plaintiff desires to lead any further evidence in rebuttal, the Plaintiff would also be entitled to do so. Subject to that and subject to the cross-examination of the Defendants on the documents produced by the Defendants, relied upon in the Affidavit of examination-in-chief, the Affidavit of Defendants is taken on record. 2.The admissibility of the documents relied upon by Defendant No.1 is considered as follows:- A. The photo copy of the ration card dated 2.1.1982 was prepared as per the Affidavit of evidence of the Defendants when the original ration card was returned to the Authorities in 1994. The photo copy of the ration card dated 2.1.1982 is marked as Exhibit-1. B. Defendant No.1 has sought to rely upon her ration card, the original of which is not produced. Photo copy cannot be marked as secondary evidence. The photo copy of the new ration card of Defendant No.1 dated 8.7.1994 is marked subject to the production of the original ration card as Exhibit-2. C.The evidence of Defendant No.1 shows how the original Fixed Deposit Receipt (FDR) issued by Larsen & Toubro Ltd. was tendered to the Company and photo copy has 3 been with Defendant No.1 since maturity of the FDR on 8.9.1995. The photo copy of the FDR of Larsen & Toubro Ltd. dated 5.10.1992, which matured on 8.9.1995 is, therefore, secondary evidence of the original FDR in the possession of Defendant No.1. The photo copy is, therefore, marked as Exhibit-3. D.The bill of Sion Polyclinic Hospital is marked Y for identification. E. The Death Certificate of Udaykar Bhau Rao is marked as Exhibit-4. F. The last Will and Testament of U.B. Rao, which is not probated, is marked Y-1 for identification. G. Paragraph 5 of the evidence of Defendant No.1 shows the letter dated 30.7.1994 signed by the Plaintiff as the trustee was sent by the Plaintiff and received by Defendant No.1. To that extent the letter is marked as Exhibit-5. It is clarified that the truth of the contents of the letter is not proved and the letter is not marked to that end. H. Further the ration card of Defendant No.1 is relied upon by the Defendants. Photo copy is 4 produced. Subject to the production of the original ration card, the photo copy is marked as Exhibit-6. 3.The Affidavit of examination-in-chief of Defendant No.1 was served upon the Plaintiff s Advocate in March 2008 along with the list of documents. Hence the Plaintiff s Advocate has copies of the documents relied upon by the Defendants. Nevertheless, the Defendants shall offer for inspection of the original documents. 4.The Commission shall continue with the same Commissioner. Parties shall appear before the Commissioner initially on 22.4.2010 and thereafter as required by the Commissioner. The Commissioner shall preferably record the evidence day to day. 5.By consent, the second witness of the Defendants who would prove the documents marked Y for identification being the bill of Sion Polyclinic Hospital, shall lead evidence before the Commissioner directly. Upon the hospital bill being proved, the hospital bill shall be taken on record as the document by the Commissioner. The Plaintiff shall be entitled to cross-examine that witness also. 6.Parties shall place the matter on Board after the entire evidence is complete. 7.The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.) 5