Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.170/2018 ..1.. Suit No.8256/1999
CNR No.MHCC010006262018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.170 OF 2018
IN
SUIT NO.8256 OF 1999
(HIGH COURT SUIT NO.914 OF 1999)
M/s. Daga Global Chemical Pvt. Ltd. .. Plaintiff
Versus
M/s. Tata Motors Ltd. and Anr. .. Defendants
Learned Advocate Pankaj Shah for plaintiff
Learned Advocate Kalyaniwalla for defendant No.1
CORAM : HER HONOUR JUDGE
SMT. ULKA L. JOSHI
(COURT ROOM NO.31)
DATE : 28th February, 2018
: ORDER :
1. This notice of motion is for discarding para Nos.4, 5, and 9
from evidence of DW1.
2. Story put forth by plaintiff in short is that,
Defendant No.1 Ashutosh Madhusudan Mantri has filed
evidence affidavit on 04/10/2017. Contentions raised in para Nos.4, 5
and 9 (which are more particularly described in schedule to notice of
motion and which is marked as portion mark 'A to F') are beyond
pleadings. Therefore, it is required to be discarded from evidence of
defendant. Hence, this notice of motion.
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NM No.170/2018 ..2.. Suit No.8256/1999
3. No reply filed to this notice of motion. However, defendant
argued that this contentions are to enlighten procedure followed by
manufacturer. These contention is about conduct of plaintiff.
Therefore they can not be discarded. Further, by said contentions no
new case is made out by defendant to the surprise of plaintiff.
Therefore no harm will cause to plaintiff. On these ground prayed for
rejection of this notice of motion.
4. Pertinent to note that as per law laid down in case of
Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao And
Other [(2010) 1 S C C 466), “parties can not be permitted to go
beyond the pleadings and evidence beyond the pleadings cannot be
permitted to be adduced nor such evidence can be taken into
consideration”. Perusal of written statement shows that portion mark A
to F more particularly described in schedule to notice of motion are not
forming the part of written statement. Therefore, these statements in
evidence affidavit are nothing but beyond pleadings. Therefore, they
cannot be taken into consideration.
Further, in case of Harkchand Gulabchand Dhoka Vs.
Kashiram Narsingh Marathe [2010 (6) Bombay Cases Reporter 379]
Hon'ble High Court held that “affidavit in examinationinchief partakes
character of examinationinchief. There is no provision in Code to
enable Court to order its deletion”. It is further rulled that, “where
portion of affidavit are in the nature of inadmissible hearsay evidence
then that party is at liberty to ignore the same and other party is not
required to crossexamine on that portion”. Considering this legal
position it is just and proper to pass the following order.
: ORDER :
1. Notice of Motion No.170 of 2018 is partly allowed.
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NM No.170/2018 ..3.. Suit No.8256/1999
2. Portion mark A to F more particularly described in schedule
to notice of motion and para Nos.4 , 5 and 9 in evidence of DW1 are to
be ignored as those are beyond pleadings.
(Pronounced in Open Court)
(Smt. U. L. Joshi)
Adhoc District Judge
City Civil & Sessions Court,
Date : 28/02/2018 Gr. Bombay
Transcribed on : 06/03/2018
HHJ signed on :
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NM No.170/2018 ..4.. Suit No.8256/1999
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
07.03.2018, 5.00 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Smt.U.L. Joshi
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
28.02.2018
JUDGMENT/ORDER signed by P.O.
on
07.03.2018
JUDGMENT/ORDER uploaded on 07.03.2018
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