Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.638/2020 in
S.C. Suit No.1774/2015. 1 Order.
MHCC010016732020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 638 OF 2020
IN
S.C. SUIT NO. 1774 OF 2015
Dilip Padamsey Sampat ...Plaintiff
V/s.
Harsh Mahesh Sampat and another ... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N. G. SHUKLA
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.63).
DATE : 18/07/2023.
Appearance:-
Ld. Advocate Shri. Paresh Madkaikar for the plaintiff.
Ld. Advocate Shri. Bipin Joshi for defendants.
ORDER
1. Plaintiff has taken out this notice of motion for seeking
permission to reopen the evidence and to examine further witness i.e.
attesting witness on Gift Deed. Defendants filed reply affidavit and
opposed the notice of motion.
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NM No.638/2020 in
S.C. Suit No.1774/2015. 2 Order.
2. I have heard Ld. Advocate for the plaintiff and Ld. Advocate
for the defendants. Plaintiff has filed this suit for declaration of his
ownership and injunction on the basis of Gift Deed dtd.02.08.2003,
allegedly executed by the father of defendants namely late Shri Mahesh
Padamsey Sampat. Gift Deed is signed by his sister as attesting witness.
After recording cross examination of witness, his earlier advocate closed
the evidence, despite plaintiff suggested him to examine the sister, who
is attesting witness.
3. Defendants have also filed Counter Suit bearing S.C. Suit
No.4600 of 2008. Seeking relief that Gift Deed is unenforceable and not
binding on the present defendants i. e. plaintiff’s in that suit and thus,
subject matter of both suit is Gift Deed.
4. Ld. Advocate for the plaintiff argued that so as to prove the
Gift Deed, the evidence of attesting witness is necessary, as the fate of
suit is based on proof of Gift Deed. Despite instructions by the plaintiff,
his earlier advocate had not examined the attesting witness and directly
closed the evidence. Therefore, notice of motion deserves to be allowed.
5. Per Contra, Ld. Advocate for the defendants argued that
both the suit are tried together and common evidence is being recorded.
The plaintiff has given certain admissions adverse to his case in cross
examination. The plaintiff wants to fill up the lacuna and to wipe out
the said admissions by seeking to adduce evidence of attesting witness.
The Gift Deed is registered document and no purpose will suffice by
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NM No.638/2020 in
S.C. Suit No.1774/2015. 3 Order.
examining the attesting witness. Plaintiff wants to examine attesting
witness on the point of love and affection and thereby to improve the
case, it cannot be permitted. Hence, Ld. Advocate for the for defendants
prayed to dismiss the notice of motion.
6. I have considered the permission and perused the record.
It appears from the record that Gift Deed is the subject matter of both
the suit, right of ownership asserted by plaintiff in this suit is entirely
based on Gift Deed. Attestation by the witness is required to Gift Deed
as per Section 123 of Provision of Property Act. The donner is not alive,
hence, Gift Deed has to be proved through attesting witness only.
Therefore, evidence of attesting witness is necessary. Unless the said
evidence is adduced, plaintiff cannot prove his case. Plaintiff has
categorically submitted that despite his instructions, his earlier advocate
had not examined the attesting witness and closed the evidence. In such
circumstances, to prove the Gift Deed, evidence of attesting witness is
just and necessary.
7. Though it is argued that plaintiff wants to fill up lacuna by
examining the attesting witness, but plaintiff cannot put up any new
case by way of evidence beyond pleading in his plaint. Moreover, if at
all any admissions adverse to the case of plaintiff would have come in
his cross examination, then inconsistent evidence of plaintiff and
evidence of attesting witness can be brought to the notice of court in
argument by the defendants. Therefore, this reason is not sufficient to
refuse permission to plaintiff to examine attesting witness. With these
reasons, I hold that permission needs to be granted to the plaintiff
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NM No.638/2020 in
S.C. Suit No.1774/2015. 4 Order.
reopen the evidence and examine his sister i.e attesting witness on Gift
Deed. In the result, I pass following order:
- ORDER -
1. Notice of Motion No. 638 of 2020 is allowed in terms of
prayer clause (a).
2. Plaintiff is permitted to adduce evidence of his sister,
who is attesting witness on Gift Deed.
3. Notice of Motion No. 638 of 2020 is disposed off
accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date :18.07.2023 Gr. Bombay.
1. Dictated on : 18.07.2023
2. Transcribed on : 18.07.2023
3. Checked and Signed on : 20.07.2023
4. Delivered to Certified :
Copy Section on
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NM No.638/2020 in
S.C. Suit No.1774/2015. 5 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20.07.2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 18.07.2023
Judgment/Order signed by P.O. on 20.07.2023
Judgment/Order uploaded on 20.07.2023
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