Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.355/2018 ..1.. Suit No.8523/1998
CNR No.MHCC010014162018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.355 OF 2018
IN
SUIT NO.8523 OF 1998
Smt. Sarla Mahesh Chaumal & Others .. Plaintiffs
Versus
Laxminarain Bhattad & Others .. Defendants
M. S. D'lima, advocate for plaintiffs
M. A. Shah, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 10th January, 2019
ORAL ORDER
Notice of motion is taken out seeking relief to recall the order
dated 05/12/2017 discharging DW1 Bhagwandas R. Bhattad and to
permit DW1 to produce evidence by filing his additional affidavit of
evidence and additional documents.
2. It is the contention of defendants that defendant No.1B after
completion of his evidence on 05.12.2017, while he was going through
some old files, came across some original documents such as bill
No.1876 dated 11.04.1969 issued by A1 Cooperative Housing Soceity
Ltd in the name of original defendant in respect of garages and
assessment done by Municipal Corporation of Gr. Bombay dated
14.03.1970. These documents are relevant and connected with the
issues in present suit. Accordingly, defendant Nos.1A to 1D made prayer
in above respect.
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3. Plaintiffs vide their reply opposed notice of motion on the
ground that notice of motion is taken out to delay the proceeding and to
introduce fresh evidence. It is further contended that documents were
neither relied upon in written statement nor in affidavit of evidence of
DW1 earlier so defendant Nos.1A to 1D cannot be permitted to recall
DW1. Accordingly, they prayed for rejection of notice of motion.
4. Heard respective counsel for parties. They made submission in
accordance with respective contention. Counsel for defendant Nos.1A to
1D placed reliance upon authorities in the cases of Shantibai K.
Vadhan & Ors. Vs. Meera G. Patel & Anr., 2009(Supp.) Bom.C.R.
445 and Cosmosteels Private Limited Vs. Supermax International
Pvt. Ltd. & Ors., 2009(2) Bom. C.R. 276 in support of his submission.
5. It is not in dispute that cross examination of DW1
Bhangwandas R. Bhattad was completed and he was discharged on
05.12.2017. It is the contention of these defendants that after
completion of evidence of DW1, he found documents mentioned in
para 6 of affidavit filed in support of notice of motion. Description of
those documents shows that they are 30 years old and relates to
garages, Flat No.77 and also pertaining to assessment done by Municipal
Corporation of Gr. Bombay. I have gone through the averments in
written statement. It is clear that contention has been made that,
defendant has been paying garage tax relating to garages No.1 to 3 to the
Society and society also had addressed letters to the defendant
informing about increase in municipal taxes in respect of garages and to
pay arrears of municipal tax. It is further averred that said Society has
also issued bills from time to time calling upon defendant to pay garage
taxes. It is further contended in written statement that Municipal
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Corporation of Gr. Bombay is assessing the said garage as workshop and
recovering taxes in respect thereof from 1969 on that basis. In view of
these contentions in written statement it cannot be said that defendant
has not raised pleadings relating to bills issued by A1 CoOp. Hsg. Soc.
Ltd. and assessment made by BMC. No doubt, specific pleadings about
documents referred to at Sr. Nos.(i) to (viii) have not been made but as
pointed above general pleadings have been made so it cannot be said
that these defendants by seeking permission to produce those
documents cause surprise to plaintiffs. In the case of Shantibai (cited
supra) it is observed that :
“This provisions, (of Order XVIII Rules 17A) however, has been omitted by
virtue of Amendment Act, 2002. However by the said Amendment, Order
VII, Rule 14 also has been amended and subrule (3) is inserted in Rule 14
of Order VII with effect from 01.07.2002. Similarly, the order under Order
XVIII, Rule 1 also has been amended. As a result of omission of Order XVIII,
Rule 17A, therefore, the power of the Court to permit the party either
plaintiff or defendant to produce additional documents is not taken away.
In fact, the power to permit the party to lead additional evidence has also
been given to Appellate Court under Order XLI, Rule 27. Therefore, in our
view, omission of Order XVIII, Rule 17A does not take away the power of
Court to permit the parties to lead evidence. It is quite settled position in
law that the purpose of procedural law is not to frustrate the rights of the
parties but the law is primarily to achieve the ends of justice and fully and
finally decide the controversy between the parties”.
In the case of Cosmosteels Private Limited (cited supra)
referring judgment in the case of Babasaheb Limbaji Mete it is held that:
“Once it is clear that the additional affidavit and documents have bearing
on the matter at issue, those documents cannot be rejected on the ground of
delay”.
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6. In present case, the documents came through proper custody
and there is no reason to disbelieve contention of defendants Nos.1A to
1D that those documents were found after evidence of DW1 was
completed. Those documents have bearing on the matter at issue. Thus,
keeping in view ratio laid down in cited authorities and facts of present
matter, I am inclined to permit DW1 to file additional affidavit of
evidence pertaining to documents sought to be produced and also to
produce documents referred to in para 6 of affidavit filed in support of
notice of motion. Hence, pass following order:
ORDER
1. Notice of Motion No.355 of 2018 is allowed and made absolute
in terms of prayer clauses (a) and (b).
2. DW1 is permitted to file additional evidence relating to
additional documents referred to in para 6 of affidavit in support
of notice of motion and defendant Nos.1A to 1D are permitted
to tender those documents on record.
Accordingly, notice of motion stands disposed off.
(M. T. Asim)
Judge
Date :10.01.2019 Gr. Bombay
Typed on : 10.01.2019
HHJ signed on :
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NM No.355/2018 ..5.. Suit No.8523/1998
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.01.2019, 4.15 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
10.01.2019
JUDGMENT/ORDER signed by P.O.
on
11.01.2019
JUDGMENT/ORDER uploaded on 11.01.2019
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