Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 8050/01 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 267 OF 2018
(CNR NO.MHCC010010822018)
IN
SUMMARY SUIT NO.8050 OF 2001
(HIGH COURT SUMMARY SUIT NO.4383 OF 2001)
Vijay N.Mehta ...Plaintiff
V/s
Star Enterprises & others ...Defendants
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 22/01/2019
Adv. Mr.S.N.Acharya for plaintiff.
Adv. Mr.Jain for defendants.
ORDER BELOW NOTICE OF MOTION NO.267/18
1. This Notice of Motion is taken out by the defendant for
discarding the affidavit of PW 1 Vijay N.Mehta or in alternative to
struck of para no.5 and para no.14 (I) to (IV) of the affidavit filed in
lieu of Examination in chief.
2 The plaintiff has resisted to the said application by filing
reply.
3. Read the Notice of Motion and reply. Heard.
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NM In SC 8050/01 Oral Order 2
4. The learned advocate for the defendant has submitted that
the plaintiff has filed evidence affidavit of Mr.Vijay Mehta on record on
16/12/2016 it is in the nature of pleading and argument. It is not as
per the mandatory requirement of the plaint. It is also submitted that
para no.14, 14(i) to (iv) contains legal submissions/arguments and it is
not relevant. So also, it is contended that in the verification it is not
specifically stated what part of the affidavit is true to the personal
knowledge of the witness. It is submitted that the para no.5 and para
no.14(i) to (iv) be struck out and not to be read in evidence. Lastly, it is
submitted to make the Notice of Motion absolute.
5. The advocate for plaintiff has submitted that the defendant
has filed the present Notice of Motion with malafide intention for
protracting the passing of decree in favour of the plaintiff and to avoid
the making of payment to the plaintiff. It is submitted that the plaintiff
has filed the evidence affidavit of PW 1 Vijaya Mehta as per rules and
the advocate for defendant has cross examined PW 1, thereafter, the
Notice of Motion is taken out. It is submitted that if any portion of
affidavit is found argumental or irrelevant, the Court can ignore it at
the time of deciding the case. Lastly, it is requested to dismiss the
Notice of Motion.
6. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the case record. There is no
dispute that the Evidence Act, restricts what evidence may be lead as a
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NM In SC 8050/01 Oral Order 3
examinationinchief. The Evidence Act is the substantive law the
provisions of Order 18 Rule 4 of CPC are procedural and the procedural
law cannot expand the ambit or scope of or overwrite substantive law.
In the present case, it appears that the plaintiff has filed his affidavit in
lieu of examination in chief on 02/02/2017 and his further
examinationinchief recorded on 27/6/2017 and documents are
marked as Exhibits. On the request of advocate for defendant matter
was adjourned for crossexamination. It appears that the learned
advocate for the defendant has cross examined to PW 1 Vijaya Mehta at
length on 14/11/2007 and again the case was adjourned for further
cross thereafter, the defendant has come with the present Notice of
Motion.
7. As such the advocate for defendant has already cross
examined to the PW 1 at length, therefore, it is not desirable to direct
the plaintiff to place another affidavit in lieu of the examinationin
chief. The learned advocate for the defendant can exclude those
portions on which he has taken the objection as not relevant, for the
purpose of crossexamination so also the learned advocate for
defendant while further cross examining to the PW 1 Vijay Mehta, if
any, will be at liberty to ignore those portions without fear of an
adverse inference being drawn. So also, the learned advocate for the
defendant may invite the attention of the Court based on the material
on record at the time of final argument any portion of the statement
made in the affidavit (Exihbit 6) of evidence filed by PW 1 which is not
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NM In SC 8050/01 Oral Order 4
confirmative as per the rules of evidence or not relevant. The Court
may definitely consider the same while deciding the suit. With the
abovesaid observations, it is just and desirable to dispose of the Notice
of Motion. In the result, following order:
: ORDER :
1. Notice of Motion no.267/18 is disposed of.
2. However, learned advocate for defendant is at liberty to ignore the
portion which are objectionable or not pleaded by the plaintiff, at the
time of further crossexamination of PW 1, without fear of an adverse
inference being drawn.
3. No order as to costs.
(M.M.UMAR)
Judge,
22/1/2019 City Civil Court, Gr. Mumbai
Date of Dictation : 22/1/19.
Date of Transcription : 22/1/19.
Date of signature : 25/1/19
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
25/1/19 2.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
22/1/19
Judgment/order signed by P.O on 25/1/19
Judgment/order uploaded on 25/1/19
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