Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 703/19(Suit 2941/10)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.703/2019
(CNR No.MHCC01-001814-2019)
IN
S.C. SUIT NO.2941/2010
1. Mrs. Vibha Jasmin Thadeshwar
2. Jasmin Jayantibhai Thadeshwar ..Plaintiffs.
V/s.
1a. Vipul Jagota
1b. Archana Jagota @ Archana Pathak ..Defendants
Appearance:
Adv. Mr. Yash Tiwari for the plaintiffs.
Adv. Mr. Vyom Shah for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 4.11.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by defendants for
expunging certain portions of affidavit filed by plaintiff dated 5.1.2018
in lieu of examinationinchief on the ground that, it contains
inadmissible portion as part of affidavit in examinationinchief, which
is contrary to the provisions of law. The N/M is supported by an
affidavit of Vipul Kapil Jagota (defendant no.1a).
2. Say/reply of plaintiffs was called and sufficient
opportunities were given to the plaintiffs for filing say/reply to the
N/M, but inspite of grant of several chances, the plaintiffs have failed to
submit any say or reply to the Motion. Hence, the Motion is proceeded
without say/reply of the plaintiffs. Ld. Counsel for the plaintiff
submitted that, he had no instruction regarding filing of the reply to the
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N/M and had sought time on 8.8.2019. Accordingly, time was granted
and matter was adjourned on 20.9.2019 and 9.10.2019 when the
matter was finally heard on the Motion along with N/M No.3727/18. I
have perused the affidavit of PW1 Mrs. Vibha Jasmin Thadeshwar
dated 5.1.2018.
3. I have heard Ld. Counsels for both sides.
4. It can be seen that, PW1 has been partly crossexamined
by Ld. Counsel for the defendants on 24.9.2018. It is submitted by Ld.
Counsel for the defendants that, the portions marked “A” of paragraph
26 of the affidavit in lieu of examinationinchief as shown in the
supporting affidavit may be excluded. Similarly, entire paragraphs
26,29,30,35,38 and 40 to 43 of the affidavit in lieu of examinationin
chief of PW1 needs to be excluded because that part of the
examinationinchief is not admissible in law.
5. Elaborating the submission made in the Motion supported
by the affidavit, Ld. Counsel for the defendants argued that, the
plaintiffs cannot file affidavit for and on behalf of the constituted
attorney of the plaintiffs' witness i.e. PW2. It is further submitted that,
certain portions of above mentioned paragraphs of the affidavit in lieu
of examinationinchief contain legal submission, argument and prayers
which cannot form part and parcel of the evidence affidavit as per
provisions of CPC. Paragraphs 39 to 42 are reproduction of part of the
plaint and repetition of prayers sought by the plaintiffs, which cannot
be read as evidence in the case.
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6. In support of above submission, Ld. Counsel for the
plaintiff has placed reliance on the authority of Hon'ble High Court in
the case Harish Loyalka and Ors. V/s. Dileep Nevatia and Ors.
(2014(4) ABR 545), wherein Hon'ble High Court has observed that,
whenever affidavit in lieu of examinationinchief contains inadmissible
and impermissible portions as per provisions of CPC, same cannot be
read as evidence in the case as impermissible in law. If it is allowed to
remain on record then scope of crossexamination of witness is likely to
be increased unnecessarily. Hence, such portions were ordered to be
expunged/ struck off from the record and deleted.
7. I have perused paragraphs 26,27,29,30,35,38 and 40 to 43
of evidence affidavit as mentioned above. After careful perusal and
examination of above mentioned paragraphs, I find substance in the
submissions made by Ld. Counsel for the defendants that, the portion
quoted in paragraphs 26,27,29,35,38 and 40 to 43 are not permissible
to be included in the evidence affidavit in lieu of examinationinchief of
PW1. It is pertinent to note that, in paragraph 29, the plaintiffs have
included MOU dated 2.4.2009 in verbatim which is not permissible in
law to be read as evidence in the case. Similarly, paragraphs 40 to 43
contain reiteration of prayers made by the plaintiffs in the plaint and
therefore, same cannot be allowed to remain on record as affidavit of
PW1 in lieu of examinationinchief, as same would be contrary to the
provisions of Order 18 Rule 4 of CPC. Hence, I proceed to pass
following order :
ORDER
1. Notice of Motion No.703/2019 is hereby allowed and
prayer clauses (a) to (g) are made absolute.
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2. Portions marked by bracket in red ink in paragraphs No.26,
27,29,30,35,38 and 40 to 43 are hereby expunged and
excluded from affidavit of PW1 submitted in lieu of
Examinationinchief as per provisions of Order 18 Rule 4
of CPC and same shall not be read as evidence in the case.
3. Needless to mention that, the defendants are not required
to crossexamine PW1 on the portions which are
expunged/ excluded from the affidavit of PW1.
4. Suit shall proceed for further crossexamination of PW1
and parties shall act as per above order.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 4.11.2019 Gr. Bombay (C.R. 03)
Dictated on : 4.11.2019
Typed on : 4.11.2019
Signed by HHJ on : 5.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 6.11.19
TIME: 5.45 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 4.11.19
Judgment/ order signed by P.O on 5.11.19
Judgment/ order uploaded on 6.11.19
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