Anandji Virji Shah And 5 Ors vs Ritesh Sidhwani And 5 Ors. And ...
2016 Latest Caselaw 3375 Bom

                                      918-CHS1153-15.DOC




     ATUL




                                                                                   
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               ORDINARY ORIGINAL CIVIL JURISDICTION




                                                           
                   CHAMBER SUMMONS NO. 1153 OF 2015
                                             IN
                                   SUIT NO. 395 OF 2007




                                                          
     Saregama India Limited                                                 ...Applicant
           In the matter between




                                            
     Anandji Virji Shah & 5 others                                          ...Plaintiffs
           Versus            
     Ritesh Sidhwani & 5 others                                         ...Defendants
                            
     Mr. Rajendra Jain, i/b M/s. Thakore Jariwala, for the Applicant.
     Mr. Aasif Navadia, with Ms. Ridhika Luthria, i/b Khimani &
          Associates, for the Plaintiffs.
     Mr. Ashok Singh,i/b Mr. R.N. Gaonkar, for Defendant No. 3.
      
   



                                   CORAM:       G.S. PATEL, J
                                   DATED:       27th June 2016
     ORAL ORDER:-





     1.

This is the 5th Defendant's Chamber Summons for leave to lead secondary evidence to prove certain documents. Such a

Chamber Summons, it is well settled, is not maintainable.

2. In Indian Overseas Bank v Trioka Textile Industries and Ors.,1 Vazifdar J (as he then was), held that such a Chamber

1 AIR 2007 Bom 24 : 2006 (6) Bom.C.R. 85

27th June 2016

918-CHS1153-15.DOC

Summons is unnecessary, and is misconceived. It is neither

necessary nor desirable. It is always open to the party to lead secondary evidence before the Judge recording evidence or hearing

the matter without having to file such an application. He said:

2. A party desiring to lead secondary evidence must do so before the Judge recording the evidence. It

is the Judge recording evidence who must decide, if any objection as raised, whether or not to admit the secondary evidence in evidence. If evidence is led

before a Commissioner the objection to secondary evidence naturally can only be recorded and not

decided by the Commissioner. It is then the Judge hearing the suit who decides the objection.

3. Therefore, if the 5th Defendant seeks to prove any documents in evidence and cannot do so by primary or direct evidence, he is always at liberty under the provisions of the Evidence Act to lead

secondary evidence at the trial. No separate leave in a Chamber

Summons is necessary or appropriate for this purpose.

4. The Chamber Summons is dismissed with these

observations, keeping the 5th Defendant's rights and contentions expressly open in this regard.

5.

List the Suit for marking the 5th Defendant's documents on Friday, 1st July 2016 on the supplementary board.

(G. S. PATEL, J.)

27th June 2016