Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010010832018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.268 OF 2018
IN
SUMMARY SUIT NO.7439 OF 2005
Ms Rasiklal Kantilal & Co ... Plaintiff
V/s.
Ms R. J. Tubes and Rods Pvt Ltd ... Defendants
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 06/12/2021
Appearances:
Adv. Mr. Ajit Shinde for the defendant.
Adv. Mr. Rajesh Patil for the plaintiff.
ORAL ORDER
1. This is a Notice of motion taken out by the defendant for
setting aside the order dated 27.04.2017 of exhibiting documents at
serial no. 1,2,3 and 5 and de-exhibition of those documents. Further, it
is prayed that the Cross-examination of PW-1 may be stayed pending
herein and final disposal of the Notice of Motion.
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2. The plaintiff has replied notice of motion and opposed it
strongly.
3. Heard both the advocates for the parties at the length.
4. It is contended by the defendant that the plaintiff has
produced certain documents alongwith list at the time of filing evidence
affidavit on record. The defendants have filed their written objection in
the month of April-2016. The document at Serial no. 1,2,3 and 5 are
not admitted by the defendants. However, those documents are
exhibited by the Court without taking into consideration, the objection
raised by the defendants. The plaintiff has not given satisfactory
account of the ingredients of those documents. The contents are not
proved in the evidence. The plaintiff failed to disclose in his evidence
about the proof of execution, contents and custody of those documents.
Those documents were not capable of marking as exhibit in accordance
with the procedure and provisions of Indian Evidence Act. The
documents ought not to have been exhibited but erroneously without
considering the objection raised by the defendant, the same got
exhibited. Therefore, re-hearing on marking of documents is necessary
in the interest of justice. Hence, the notice of motion is taken out for the
relief of de-exhibition of documents accordingly.
5. The Notice of motion is opposed by the plaintiff. The
reply is placed on record. It is contended that the documents were
proved in the evidence in accordance with the provisions of Evidence
Act. The authorized person has filed examination in chief alongwith
documents and the defendant has filed its written objection also. The
plaintiff has made application for leading secondary evidence which
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was allowed by the Court after considering the objections and
contentions of the defendant. Said order is not challenged by the
defendant and the same attained finality. Thereafter, the defendant has
filed objection to the documents and after hearing both the parties on
documents, the documents were exhibited by order dated 27.04.2017.
The defendant is asking such thing of de-exhibition which is not
permitted by law. The orders were passed on merit. There is no
provision in law to de-exhibit the document which is already exhibited.
Hence, the Notice of motion being not maintainable, needs to be
dismissed with exemplary cost.
6. I have gone through, the record of the case as well as the
nothings of different dates during which the process of exhibition of
document was undertaken. I have also gone through the order passed
regarding exhibition of document and Notice of motion no. 3587 of
2015 under which plaintiff was allowed to lead secondary evidence.
7. It is settled position in law that once the documents are
marked as Exhibits, they cannot be de-exhibited. At the same time,
while deciding the suit finally, the Court can consider the relevancy and
the contents of the documents which are exhibited during evidence. The
proposition that there is no provision in Civil Procedure Code, 1973 or
under Indian Evidence Act to de-exhibit the documents once exhibited
in evidence, cannot be found fault with. However, such exhibition of
document shall be in accordance with the provisions of law. It is not
mere endorsement on the document about the exhibit number that will
constitute exhibition of document in evidence in accordance with the
provisions of law. In order to say, that the document has been exhibited
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in evidence, it has to be in accordance with the provisions of law
comprised under order 18 Rule 4 as well order 13 Rule 4 and 5 of Civil
Procedure Code. Further more, the document can be exhibited after
leading secondary evidence in compliance with the provisions of Section
63 to 66 of the Evidence Act. If the document is exhibited in other
manner or by adopting any other procedure, unless it is sure that such
procedure has sanction of law, exhibition of such document in evidence
cannot be said to be the exhibition in accordance with law. Therefore,
even if, exhibit number is given, it cannot be said to be the exhibition of
document in evidence in terms of order 18, Rule 4 r/w order 13 Rule 4
and 5 of C.P.C.
8. Here, it is to be seen whether the documents were
exhibited in accordance with the aforesaid legal provisions or not. For
said purpose I have gone through the evidence of Plaintiff, the
documents filed by him, the notings and orders passed by the Court.
The evidence affidavit is at Exhibit no. 5 and the documents are filed at
Exhibit 06 i.e. list of documents. The documents filed by the plaintiff
are the certified copies. The roznama of the case shows that on dated
20/04/2016, the defendant has given objection to the admission denial.
Further more, the plaintiff has taken out notice of motion no. 3587 of
2015 for leading secondary evidence. The documents filed by the
plaintiff are the certified copies and therefore, the plaintiff has adopted
lawful procedure by moving notice of motion for leading secondary
evidence on said certified copies. The record further shows that the
notice of motion is allowed and plaintiff has been permitted to lead
secondary evidence. The roznama of dated 27/04/2017 shows that, the
plaintiff and defendants advocate were present in the Court and after
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considering submissions, the Court has exhibited the documents i.e. the
certified copies produced by the plaintiff. Subsequently, the matter has
been posted for cross-examination of plaintiff for three dates but the
defendant did not raise any objection regarding exhibition of those
documents. It transpires from the record, that the Court has considered
the secondary evidence on law point and after giving reasonable
opportunity of hearing and after considering the admission and denial
by the parties, exhibited the certified copies produced by the plaintiff.
As such, it transpires that the procedure led down under Section 63 to
66 as well as order 13 Rule 4 has been properly adopted by the Court at
the time of exhibition of documents. It is not the case that, said
documents were exhibited merely as a technical work or just for
identification. The record shows that admission and denials are
considered by the Court and after adopting procedure sanctioned by
law, the documents were rightly exhibited in evidence. Therefore, I hold
that the exhibition of document has taken place in accordance with the
provisions of law. In such circumstances, the documents which are
already exhibited in evidence cannot be de-exhibited now.
9. Hence, I hold there is no substance in the submission made
by the defendant that the documents were marked erroneously as
Exhibit without taking into consideration the objection raised by them.
Therefore, further I hold that there is no provision in law to de-exhibit
the documents which are already exhibited in evidence. Apart from
this, it can be said that if the exhibited document is found in admissible
or not relevant, the same will be considered while giving final verdict in
this matter. Hence, I hold that the documents cannot be de-exhibited
now.
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10. Considering the discussion made above I hold that the
Notice of motion is liable to be dismissed for the reasons stated above.
Hence, the order:
ORDER
1. The Notice of Motion no.268/2018 is dismissed.
2. The Notice of Motion No. 268/2018 is disposed of.
Date: 06/12/2021
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Direct Typed on Computer on : 06/12/2021
Signed on : 06/12/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06.12.2021 05.30 p.m. ( S.R.Mejari )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
06.12.2021
JUDGMENT/ORDER signed by
P.O.on
06.12.2021
JUDGMENT/ORDER uploaded on 06.12.2021
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