Interim Order 1

Order Details: Order below exhibit
Pdf Text: 1 Exh.19Suit 680/18
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
ORDER BELOW EXHIBIT-19
IN
SUIT No. 680 OF 2018
Smt. Vijaya R. Kamath … Plaintiff.
Vs.
Mr. Kiran Ratnakara Kamath … Defendant
Appearance :
Advocate Mr. Suneet Gupta for the Plaintiff.
Advocate Mr. Sandeep Bhagwat for the defendant.
CORAM : HHJ V. M. Pathade
(C.R.NO.62)
Date : 24th August, 2023
O R D E R
The plaintiff has moved this application under Order 13
Rule 9 of Code of Civil Procedure seeking substitution of original
documents namely, 1) share certificate in respect of flat No.B/43,
Shefali Building, Makrand Sahnivas, Mahim, Mumbai, 2) death
certificate of plaintiff’s husband Mr. Ratnakar Kamath and 3) Will dated
23.02.1998 excuted by the plaintiff’s husband. It is contended that the
plaintiff requires those documents to file a proceeding for Letters of
Administration before the Hon’ble Bombay High Court in respect of the
estate left by her husband. It is further stated that this Court has
observed that the said Will of the plaintiff’s late husband can be proved
through probate only and therefore, it is necessary for the plaintiff to
file probate of the said Will at the earliest. It is also claimed that the
cross-examination of the PW-1 has commenced before the Court
Commissioner at the residence of PW-1 on the basis of photocopies of
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the said original documents. The plaintiff undertakes to produce the
original documents if required and directed by this Court at any kind in
future. The plaintiff filed affidavit in support of the said application.
2. The defendant by his affidavit in reply Exh.19-A strongly
opposed the application contending that, it is false and frivolous. The
suit is part-heard and the PW-1 is under cross- examination during
which the plaintiff admitted that her husband purchased the suit flat in
her name by paying entire consideration amount and also that her
husband purchased shop at Greenfield Society in her name. In this
scenario according to the defendant, it is not proper to return the
original share certificate. He would also contend that the original
documents are required to be referred by this Court at the time of
arguments as well as at the time of deciding the suit and after decision
the plaintiff may seek return of those documents. As regards to death
certificate, it is stated that the plaintiff can make application to the BMC
authorities and obtained death certificate. As regards to Will dated
23.02.1998 it is the contention of the defendant that he is not aware
whether any probate proceeding or any application for Letters of
Administration of the estate of the deceased is filed before an
appropirate Forum. The plaintiff can get certified copy of the Will from
the Court on making such application and on the basis of the said
certified copy of the Will, she can make application before the Hon’ble
Bombay High Court seeking probate or Letters of Administration.
Ultimately, the application sought to be rejected.
3. Heard the learned Counsl for the respective parties who
would make their submissions on the line of their contentions made in
the application and the said reply.
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4. So as to appriciate the respective contentions of the parties,
it would be relevant to refer the provision of Rule 9 of Order 13 of CPC
which is applicable to the State of Maharashtra in view of the Bombay
High Court amendment. The said provision is reproduced as below:
“9. Return of admitted documents- (1) Any person, whether a
party to the suit or not, desirous of receiving back any doucment
produced by him the suit and placed on the record shall, unless
the document is impounded under rule 8, be entititled to receiv
back the same,-
(a) where the suit is one in which an appeal is not allowed,
when the suit has been disposed of, and
(b) where the suit is one in which an appeal is allowed,
when the Court is satisfied that the time for preferring an
appeal has elapsed and that no appeal has been preferred
or, if an appeal has been preferred, when the appeal has
been disposed of:
Provided that a document may be returned at any time earlier than that
prescribed by this rule if the person applying therefor-
(a) delivers to the proper officer for being substituted for the
original,-
(i) in the case of a party to the suit, a certified copy, and
(ii) in the case of any other person, an ordinary copy,
which has been examined, compaared and certified in the
manner mentioned in sub-rule (2) of rule 17 or Order VII,
and
(b) undertakes to produce the original, if required to do so:
provided also that a copy of the decree and of the judgment filed
with the memorandum of appeal under Order XLI, rule 1, may be
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returned after the appeal has been disposed of by the Court.
Provided also that no document shall be returned which, by force of the
decree, has become wholly void or useless.
(2) On the return of document admitted in evidence, a receipt
shall be given by the person receiving it”
5. After considering the said provision, I would find that the
present application would fall under the first proviso to sub-rule (1).
However, the document namely death certificate being the extract from
the register of birth and death maintained under the Registration of
Births and Deaths Act, 1969 and the Maharashtra Registration of Births
and Deaths Rules, 2000, the plaintiff can obtain such extract from the
Municipal Corporation of Greater Mumbai, which has issued death
certificate in question. Hence, the application deserves to be allowed so
far as original share certificate and Will are concerned, subject to the
conditions and stipulations contemplated in clause (a) and (b) to first
proviso to sub-rule (1) of Rule 9 of Order 13 of CPC as indicated above.
The application stands accordingly disposed of.
Date : 24.08.2023 V. M. Pathade
Direct Dictated on : 24/08/2023. Judge, City Civil Court,
Checked on : 24/08/2023. Gr. Mumbai C. R. No. 62
Signed on : 24/08/2023.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25.08.2023 at 11.20 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI V. M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 24/08/2023
Order signed by P.O. on 24/08/2023
Order uploaded on 25/08/2023
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