1 chs1575-10.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.1575 of 2010 in Suit No. 2537 of 1992 Arvind Ambalal Patel .. Plaintiff v/s. Suman J. Patel & Anr. ..Defendants Mr.K.D.Shah for the Plaintiff. Mr.U.J.Makhija i/b. M.G.Mimani for the Defendant Nos.1 and 2 CORAM : R.Y.GANOO, J. DATED : 29th November , 2010 P.C. : 1. Heard Counsels on both sides. By this Chamber Summons the plaintiff wants that P.W.2 Mr. Fernandes be recalled for giving further evidence and to produce estimate given by M/s. Shah & Sanghi Motors on 8.2.2005 and 10.2.2005, as also the office copy of letter dated 18.6.2005 addressed to plaintiff. By prayer clause (b) the plaintiff wants that Court Receiver’s Report dated 18.10.2004 and letter dated 1st January, 2004 from M/s.N.M.Dagli & Co., Advocates for the plaintiffs be produced. 2 chs1575-10.sxw 2. At the stage of recording of evidence plaintiff examined in all three persons including himself. Plaintiff No.2 Mr.Fernandes was examined as he was working as Manager of Sanghi Motors Ltd., in the year 2005 as also he continued to do so in 2010 when his evidence was recorded. It is to be noted that the suit car was in possession of defendants. Receiver was appointed in respect of said car while it was in possession of the defendant no.1. At one stage defendant no.1 declined to continue as Agent of Court Repairs and that is how the car was surrendered to Court Receiver and it came in the hands of the plaintiff. This happened sometime in January 2005. Thereafter the plaintiff took the car to Sanghi Motors Ltd, as according to the plaintiff the car required substantial repairs on account of damage caused to the car. According to the plaintiff estimate was submitted by Sanghi Motors afresh in April 2007. 3. In the Court at the stage of recording of evidence of Mr.Fernandes, P.W.2 was called upon to produce estimate submitted in 2007. This witness was cross examined extensively by the defendant. At that stage, the production of estimate filed in 2005 was not considered by the plaintiff. Thereafter third witness, namely P.W.3 was examined. 3 chs1575-10.sxw Evidence was closed by the plaintiff. The defendant chose not to enter the witness box and the arguments of plaintiff’s advocate commenced. After the arguments were heard for substantially long time, this Chamber Summons is taken out. It is opposed by the defendant on the ground that plaintiff had enough opportunity to produce appropriate material when Mr. Fernandes was in the witness box and was put to examination. After having perused the entire record uptill now as well as the affidavit in this Chamber Summons, I am inclined to reject the prayer clause (a) for the following reasons. 4. It was well within the knowledge of the plaintiff that estimates were secured by the plaintiff in the year 2005. Infact, such estimate was received by the plaintiff and as such an estimate could have been conveniently produced by the plaintiff in the course of recording of evidence of P.W.2 Mr.Fernandes. That was not done, and it is only at the stage of arguments, the plaintiff felt that this estimate should be produced. The explanation given in the affidavit in support of the chamber summons cannot be accepted as good explanation to recall Mr. Fernandes and ask him to produce the estimate. It is not the case of plaintiff that he came to know about the estimate of 2005 after 4 chs1575-10.sxw evidence in the suit was fully recorded. In my view, it would not be proper to allow the plaintiff now, at such belated stage to bring on record evidence which was otherwise easily available during the course of recording evidence od Mr.Fernandes, P.W.2. The discretion cannot be exercised in favour of the plaintiff. To that extent the prayer clause (a) cannot be granted. 5. Prayer clause (b) pertains to production of report prepared by the Receiver in the year 2004. According to the plaintiff in the said report the condition of the car was very much mentioned and that report would help the plaintiff to put up his case properly. In so far as this aspect is concerned, plaintiff had the notice of the text of the Court Receiver’s Report. He could have called the Court Receiver to produce the said report as document before closing his case. Thereafter he could have examined appropriate person who had prepared the report and had taken survey of the car and had noticed various defects in the car and proved the report. This could have been easily done by the plaintiff during the course of recording of evidence. This has not been done. In my view, the plaintiff ought to have acted in deligent manner. Responsibility to bring appropriate 5 chs1575-10.sxw evidence on record was on the plaintiff. If he wanted that his case should be put up in proper manner he should have taken appropriate steps at appropriate time. If the plaintiff has not done so at the stage of recording evidence, he cannot now do so at belated stage. The evidence of the three witnesses was not recorded in short spell, but the job of recording evidence of the three witnesses went on on different dates and that is how the plaintiff had sufficient time to think over the matter and take appropriate steps. In my view, the court should not exercise discretion in favour of the applicant in so far as prayer clause (b) is concerned. For the reasons mentioned above, following order is passed to dispose of the chamber summons. ORDER i. Chamber Summons is dismissed. There shall be no order as to costs. ii. Since this Chamber Summons was filed during the pendency of the arguments on behalf of the plaintiff, the court will have to take up the matter for hearing of the arguments on behalf of the plaintiff. Iii. By consent, adjourned to 20.12.2010 at 3.00 p.m. [R.Y.GANOO, J.] 6 chs1575-10.sxw