Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.514/2019 in Suit No.8524/2000
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 514 OF 2019
CNR NO.: MHCC010013242019
IN
SUIT NO. 8524 OF 2000
(HIGH COURT SUIT NO. 2689 OF 2000)
Mrs. Jyoti G. Kataria and another ...Plaintiffs
Versus
Mr. Gobindram T. Bhagnani (deleted since deceased)
Ms. Poonam V. Soni (deleted since deceased)
1. Mr. Rajesh S. Sapra and others ...Defendants.
Appearances:
Advocate Mr. D'silva for the plaintiff.
Advocate Mr. Almeida for defendant No.1(a).
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 16th NOVEMBER, 2019.
ORAL ORDER
Plaintiffs have filed this application to permit them to file
additional affidavit of examinationinchief.
2. Plaintiff has stated that he filed affidavit of examinationinchief
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on 10th August, 2016, alongwith the List of documents. He has further
stated that pursuant to his letter dated 20th January, 2017, the Ram
Mahal Coop. Hsg. Society Ltd., by their letter dated 27 th January, 2017
furnished certain documents in respect of the suit premises, which goes
to the root of the matter. He has further stated that he received those
documents after filing of his affidavit of examinationinchief.
Therefore, prayed to file additional affidavit of examination in chief.
3. Defendant has filed reply to this Notice of Motion and stated that
the Plaint was amended in March, 2015 and affidavit of examinationin
chief is filed in September, 2016. He has further stated that the
plaintiffs are in habit of moving frivolous application and prayed to
reject the application.
4. Ld. Advocate for the plaintiff cited judgment of the Hon'ble Apex
Court in case of Chakreshwari Construction Pvt. Ltd. vs. Manohar Lal
reported in [2017 (5) Mh.L.J.], in which it is held that, “the parties are
permitted to amend their pleadings at any stage not only during the
pendency of the trial but also at the first and second appellate stage with
the leave of the Court provided the amendment proposed is bona fide,
relevant and necessary for deciding the rights of the parties involved in the
lis”. The present application is filed for filing additional affidavit of
examinationinchief and not for amending the pleading. Therefore,
facts of the cited case and in hand are different. Hence, this case law is
not applicable to the case in hand.
5. Ld. Counsel for the plaintiff further cited judgment of the Hon'ble
Apex Court in case of Satyavati Ramprasad v. New India Assurance
Co. Ltd., reported in AIR 2017 SC 2596, in which it is held that,
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“document relevant for deciding controversy between parties and not in
possession of landlord at time of trial and came in possession at latter
stage, permission to adduce additional evidence, granted”. In the case in
hand, plaintiff has also stated that he wrote letter to Society and then
he secured documents, therefore, this case law is squarely applicable to
the case in hand.
6. Ld. Counsel for the plaintiff has further cited Judgment of Hon'ble
Bombay High Court in case of M/s. Mukund Iron Staff Association Co
op. Housing Society Ltd. vs. Vasant Ramchandra Patil & Ors. in Writ
Petition No. 7688 of 2013 decided on 18th February, 2015 reported in
2016(3) ALL MR 721, in which it is held that, “plaintiff by way of
additional evidence wants to produce evidence in respect of his readiness
and willingness to perform his part of contract, application has to be
allowed if same assists in rendering justice.” In the case in hand also if
plaintiff is allowed to adduce evidence then matter can be decided on
merits fully. Hence, this case law is squarely applicable to the case in
hand.
7. Ld. Counsel for the plaintiff further cited judgment of the Hon'ble
Bombay High Court (Panji Bench) in case of Smt. Chitrakala Fal
Dessai vs. Shri. Balu Marathe alias Mane s/o. Jyotiba Marathe in
Writ Petition No.390 of 2002 decided on 30th June, 2006, reported in
2006(5) ALL MR 438, in which it is held that, “a party has to show
cause why the documents could not be produced earlier, not a very strict,
restricted and pedantic view can be taken of this provision. Ultimately the
Court will have to ensure that all documents which assist it to resolve the
controversy before it in an efficient manner are available for its perusal”.
In the case in hand also to decide the matter on merits, it will be proper
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to allow plaintiff to adduce documents. Hence, this case law is squarely
applicable to the case in hand.
8. Ld. Counsel for the plaintiff further cited judgment of the Hon'ble
Apex Court in case of N.C. Bansal vs. Uttar Pradesh Financial
Corporation and another reported in AIR 2018 SC 685, in which it is
held that, “when the amendment sought not changing nature of suit,
application not filed at belated stage, application for amendment,
allowed”. The present application is for filing additional evidence and
not for amending the Plaint. Therefore, facts of the cited case and in
hand are different. Therefore, this case law is not applicable to the case
in hand.
9. Plaintiff has specifically stated that he got documents on writing
letter to Coop. Hsg. Society Ltd. He has stated that he got documents
after filing evidence affidavit. It appears, yet evidence of defendant has
not started and crossexamination of witnesses of plaintiff has also not
commenced. If plaintiff is allowed to file additional evidence, it will not
cause any harm to defendant. But at the same time, Ld. Counsel for the
defendant has contended that the documents which are already on
record are also intended to be brought on record with the List of
Documents i.e. documents at serial Nos. 8, 9 and 10 and documents at
serial No.6. Definitely it will not be proper to allow to produce the
documents which are already on record.
10. As discussed above, to decide the case on merits and fully, it will
be proper to allow plaintiff to adduce additional affidavit of evidence
and documents. Hence, following Order:
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ORDER
1. Notice of Motion No.514 of 2019 is allowed in terms of prayer
clause (a) with the directions not to produce documents which
are already on record produced by plaintiffs.
2. Notice of Motion No.514 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 16.11.2019. City Civil Court,
Gr. Bombay.
Dictated on : 16.11.2019
Transcribed on : 16.11.2019
Signed on : 16.11.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.11.2019 At 04:32 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
16.11.2019
Judgment/Order signed by P.O. on 16.11.2019
Judgment/Order uploaded on 19.11.2019
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