Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 413-18 in S.C.SUIT no.7305-01
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 413 OF 2018
(CNR no. MHCC010016382018)
IN
S.C. SUIT NO. 7305 OF 2001
(CNR no. MHCC010058272001)
(HIGH COURT SUIT NO. 2101 OF 2001)
1. Kewalchand Amrutraj Mehta & Anr. ]..Plaintiffs
Versus
Hiracon Properties Pvt. Ltd. ]... Defendant
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 03rd April, 2019.
Mr. Giriraj, advocate for plaintiffs.
Mr. Gyani, advocate for defendant
ORDER
1. The plaintiffs have taken out this motion seeking directions
to strike out certain portions of affidavit of evidence (Ex.49) filed by the
DW1 R. B. Agrawal in lieu of his examination in chief, being beyond
the purview of the provisions of Order XVIII Rule 4 of the Code of Civil
Procedure (C.P.C.).
2. The learned advocate for the plaintiffs submitted that the
plaintiffs were put in possession of the suit premises at an adinterim
stage by order of the Hon'ble High Court in a suit for specific
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performance of an agreement. According to him, the plaintiffs closed
their evidence. The suit is part heard. The defendant filed the affidavit
of evidence (Exh.41) containing matters beyond pleadings. Therefore,
the plaintiffs took out notice of motion no. 878 of 2015, which was
allowed on 20.02.2017 directing the defendant to strike out
unnecessary statements made in various paragraphs of the affidavit.
Though, the defendant filed a fresh affidavit of evidence (Exh.49), it did
not obey the aforesaid order. According to him, submissions, denials or
arguments can not be the part of affidavit of evidence. He placed
reliance on the ratio laid down in the following authorities :
I. 2015(5)Bom. C.R. 813.
Banganga Cooperative Housing Society Ltd. vs. Vasanti
Gajanan Nerurkar
Ratio : No affidavit of evidence under Order XVIII Rule 4 of
C.P.C. could be allowed to be withdrawn. Evidence affidavit could
not contain matter that was irrelevant, inadmissible or both or in
nature of arguments, submissions or prayers. It was also held that
party could not constantly seek to improve on evidence it leads. It
was held permissible by Court to order expunging or redaction of
any part of an evidence affidavit (relevant paragraph 22).
II. 2015(3) A.B.R.151.
Mahabanoo Navroz Kotwal vs. Piloo Fali Bomanji
Ratio : Order XIX Rule 3 of C.P.C. provides that affidavits shall be
confined to such facts as the deponent is able on his own
knowledge to prove, except on interlocutory applications, on
which statements of his belief may be admitted. Affidavits
permitted to be filed under Order XVII Rule 4 of C.P.C. in lieu of
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examination in chief has to contain only deposition which is
relevant facts in issue in suit. Therefore, irrelevant part of
affidavit deserves to be ignored.
3. On the other hand, the learned advocate for the defendant
submitted that the suit is for specific performance of an oral agreement.
As per the directions given in the order dated 20.02.2017 passed on
notice of motion no. 878 of 2015, the defendant tendered affidavit of
evidence by correcting more than 30 paragraphs. Earlier the defendant
had also took out chamber summons no. 191 of 2012 for amendment of
the written statement which was withdrawn at the oral directions of the
Hon'ble High Court and granting liberty orally to bring on record
relevant facts, documents etc. Therefore, according to him, the said
facts were mentioned in the affidavit. He further submitted that the
affidavit of evidence (Exh.49) does not contain irrelevant material. He
also filed written submissions.
4. He placed reliance on the observations made by the Hon'ble
High Court in the case of Banganga (supra) made in paragraph no. 21
to the effect that, “as to what can or can not be the subject matter of such
an order, I do not think any absolute standard or rule can be set out. It
may, in given case, be that the evidence affidavit contains material that is
relevant but is unsupported by pleadings. Cesar Rego Fernandes and others
vs. Angela Ninetee Oliveira Fernandes and others tells us that this is not
the kind of material that can be ordered to be struck off. But the material
that is clearly irrelevant, or here say, in the nature of legal submissions,
arguments, in the form of prayers or reliefs, or denials of the kind in the
pleadings has no place in an evidence affidavit........ I would suggest that
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in a matter where there is the slightest doubt, then the material should be
retained and not deleted or struck off. That power, while available to a
Court in its inherent jurisdiction, must be exercised cautiously and
judiciously, and no cut–and–dried one–size–fits–all formulaic approach is
possible”.
5. I have carefully gone through the statements made in the
affidavit (Exh.49) and the pleadings and the aforesaid ratio. The
plaintiffs have instituted suit for specific performance of an oral
agreement of May, 1996. Earlier by order dated 20.02.2017 passed on
notice of motion no. 878 of 2015 the learned Predecessor of this Court
had been pleased to direct the DW1 to correct the contents of affidavit
(Exh.41) in paragraph nos. 11, 12, 15, 17, 19, 20, 23, 32, 33, 41, 45,
46, 48 to 50, 53 to 55, 57, 59 & 65 and further, to delete the contains in
paragraph nos. 25, 28, 34 to 38, 43, 44, 47, 52, 56, 60 to 63, 67, 68, 69
partly and paragraph nos. 64 and 66 fully. Accordingly, the DW1 filed
affidavit of evidence (Exh.49) a fresh. However, according to plaintiff,
the same is also not proper as the DW1 has made statements in the
form of submissions denials or arguments and also put a new case or
different case beyond the pleadings in written statement.
6. On perusal of the said order dated 20.02.2017, it appears
that except the aforesaid paragraphs the DW1 was not required to
correct; or delete partly or totally the contents of the remaining
paragraphs of the affidavit i.e. paragraph nos. 1 to 10, 13, 14, 16, 18,
21, 22, 24, 27, 29, 30, 31, 39, 42, 51, 58. During the course of
arguments the learned advocate for the plaintiffs tendered across the
bar a comparative chart showing the statements made in paragraph nos.
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4 to 11, 16, 18, 20, 21, 22, 25, 27, 35, 36, 37, 42, 43, 45, 47 to 52, 54,
56 to 58, 60 to 62 of the affidavit (Exh.49). He has also mentioned
certain paragraphs of affidavit (Exh.41). However, upon filing fresh
affidavit (Exh.49) as permitted by the learned Predecessor on
11.04.2017, the earlier affidavit (Exh.41) need not be considered as a
piece of evidence. Considering the directions in the order dated
20.02.2017 now the plaintiff can not again say that some statements are
made beyond pleadings by putting a new / different case in paragraph
nos. 1 to 10 of the affidavit (Exh.49) because in the said order dated
20.02.2017 there was no direction to delete or correct the contents of
the said paragraph. Even though, the defendant has not placed any
material in writing about the oral directions given by the Hon'ble High
Court while disposing off the chamber summons no. 191 of 2012, the
DW1 can not be disallowed to make statement relating to the same in
his affidavit of evidence. The plaintiff will get an opportunity to cross
examine the DW1 on that aspect and bring truth on record.
7. So far as, the contention raised by the advocate for the
plaintiff that in the entire paragraph nos. 4 to 6, 8 are beyond pleadings
and paragraph nos. 7, 9 and 10 are in the form of arguments etc. can
not be considered at this stage because earlier while deciding notice of
motion no. 878 of 2015 the similar contentions were turned down by
the learned Predecessor.
8. So far as, the paragraph nos. 11 & 12 are concerned the
advocate for the defendant submitted that the paragraphs are modified
as per the order and they form the part of paragraph no. 11 of (Exh.49),
the plaintiff can have an opportunity to cross examine the witness in
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respect of the statements made in the paragraph no. 11 and therefore,
the objection raised by the plaintiff can not be considered.
9. The contents of paragraph no. 16 of affidavit (Exh.49),
“instead of making the payment.... filed the present suit”, are in the
form of submissions and the same are hereby struck off.
10. The contents of paragraph no. 18 of affidavit (Exh.49),
“what was commercially..... as an after thought”, are in the form of
submissions and beyond pleadings and therefore, the same are hereby
struck off.
11. The contents of entire paragraph no. 20 of affidavit
(Exh.49) are in the form of submissions / denials / arguments and
therefore, the same are hereby struck off.
12. The contents of paragraph no. 21 of affidavit (Exh.49) to
the effect, “I deny that it was informed..... or communication from the
defendant” and, “the plaintiff no. 1 ….. suit building” are in the form of
denials and submissions and therefore, the same are hereby struck off.
13. The contents of paragraph no. 22 of affidavit (Exh.49) to
the effect, “but the plaintiffs have with alternative motive suppressed
these facts” being in the form of arguments are hereby struck off.
14. The contents of paragraph no. 25 of affidavit (Exh.49) to
the effect, “I deny that the plaintiffs pointed out..... amounts due as
alleged” and, “I say that..... financial difficulty” being in the form of
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denials and arguments are hereby struck off.
15. The contents of entire paragraph no. 27 of affidavit
(Exh.49) to the effect, “I specifically deny.... same being false” being in
the form of denials and submissions are hereby struck off.
16. The contents of entire paragraph no. 35 of affidavit
(Exh.49), “plaintiffs had not secured..... nor sought out permission”
being in the form of submissions, arguments and denials are hereby
struck off.
17. The contents of paragraph no.36 of affidavit (Exh.49),
“now as a flats......decreed accordingly” being in the form of
submissions / arguments are hereby struck off.
18. The contents of paragraph no.37 of affidavit (Exh.49),
“defendant did not agree..... construct a jain temple” being in the form
of submissions are hereby struck off.
19. The contents of entire paragraph no. 42 of affidavit
(Exh.49), “the defendants did not assure..... allegedly sold the said
premises” being in the form of submissions, arguments, denials are
hereby struck off.
20. The contents of paragraph no. 43 of affidavit (Exh.49),
“thereafter with ulterior..... Mr. Niranjan” being in the form of
submissions are hereby struck off.
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21. The contents of paragraph no. 45 of affidavit (Exh.49),
“defendants had never.... allotment letters” being in the form of
submissions, denials are hereby struck off.
22. The contents of paragraph no. 47 of affidavit (Exh.49),
“defendant had not agreed..... wrong address of plaintiff” and, “even
after filing..... ten years ago” being in the form of submissions /
arguments are hereby struck off.
23. The contents of paragraph no. 48 of affidavit (Exh.49), “the
plaintiffs have by their conduct...... agreed interest” being in the form of
submissions are hereby struck off.
24. The contents of paragraph no. 49 of affidavit (Exh.49), “I
prayed that..... interest thereon” being in the form of reliefs are hereby
struck off.
25. The contents of paragraph no. 50 of affidavit (Exh.49),
“plaintiffs are attributing..... present false dispute” being in the form of
submissions and reliefs are hereby struck off.
26. The contents of paragraph no. 51 of affidavit (Exh.49), “it
is because of plaintiffs' in action...... for execution” being in the form of
submissions are hereby struck off.
27. The contents of paragraph no. 52 of affidavit (Exh.49),
“letter of allotment....... an agreement” being in the form of submissions
are hereby struck off.
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28. The contents of entire paragraph no. 54 of affidavit
(Exh.49), “I say that..... by the plaintiffs” being in the form of
submissions are hereby struck off.
29. The contents of paragraph no. 56 of affidavit (Exh.49),
“defendants were not bound..... said allotment letter” being in the form
of submissions / arguments are hereby struck off.
30. The contents of paragraph no. 57 of affidavit (Exh.49),
“interest as claimed..... the defendants” being in the form of submissions
/ denials / reliefs are hereby struck off.
31. The contents of paragraph no. 58 of affidavit (Exh.49), “the
plaintiffs have not suffered...... false and imaginary” being in the form
of submissions, denials are hereby struck off.
32. The contents of paragraph no. 60 of affidavit (Exh.49), “the
alleged claim..... bar of limitation” being in the form of legal
submissions and reliefs are hereby struck off.
33. The contents of paragraph no. 61 of affidavit (Exh.49), “in
the facts...... be dismissed with costs” being in the form of submissions
and reliefs are hereby struck off.
34. The contents of paragraph no. 62 of affidavit (Exh.49), “I
say that...... two allotment letters” being in the form of submissions,
reliefs are hereby struck off.
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35. It is further directed that the plaintiff to cross examine the
DW1 R. B. Agrawal by ignoring the aforesaid struck out statements in
the affidavit Exh.49. There is no need to filed an affidavit a fresh.
Therefore, the following order is passed:
ORDER
1. The Notice of Motion no. 413 of 2018 is made absolute with costs
in the terms of aforesaid directions.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 03.04.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 03.04.2019
Checked by HHJ on : 04.04.2019
Signed by HHJ on : 04.04.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.04.2019 at 11.30 a.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
03/04/2019
JUDGMENT/ORDER signed by
P.O. on
04/04/2019
JUDGMENT/ORDER uploaded
on
05/04/2019
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