Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.386/2019 ..1.. Suit No.9773/1982
CNR No.MHCC01002004 2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.386 OF 2019
IN
SUIT NO.9773 OF 1982
(High Court Suit No.1559 of 1982)
New Sagar Darshan Coop. Hsg. Society Ltd. .. Applicant/
Ori. Plaintiff
In the matter of
New Sagar Darshan Coop. Hsg. Society Ltd. .. Plaintiff
Versus
Apurva Ajay Doshi & Ors. .. Defendants
Shri. Zubin Dalal, advocate for plaintiff
Shri. Sasidharan, advocate for defendant Nos.1(a), 1(b), 2(a), 6 and 7
Shri. Shroff, advocate for defendant No.14a and 16
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 01st March, 2019
ORAL ORDER
Chamber summons is taken out by plaintiff to strike out portions
of affidavit in lieu of examinationinchief of Ajit Ramniklal Doshi filed
on behalf of defendant Nos.1(a), 1(b), 2(a), 6 and 7 as per Schedule
annexed to the chamber summons as same do not constitute evidence
admissible in examinationinchief.
2. Plaintiff has sought for deletion of portions of affidavit in lieu of
examinationinchief of Ajit Ramniklal Doshi particularly last statement
of paragraph 13, entire paragraphs 17, last two statements of paragraph
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20, entire paragraphs 22 and 23, statement which read as “In
connection therewith ….. The contents thereof are false” of paragraph
No.32 and last two statements which read as, “We are entitled to
become members of the plaintiff. Till date, we have not been made
members by the plaintiff” of paragraph No.38.
3. Plaintiff has sought striking of portions as pointed above of
affidavit in lieu of examinationinchief of Ajit Ramniklal Doshi on the
count that contents relating to para 13 as pointed above traverses
beyond pleadings and is not to the personal knowledge of deponent,
contents in para Nos.17, 20 and 32 are not to the personal knowledge
of deponent and that of para No.22 and 23 are beyond pleadings and
chamber summons to incorporate the aforesaid contentions has been
rejected and contents of para 38 as pointed above traverses beyond
pleadings. Accordingly, plaintiff has prayed for grant of chamber
summons.
4. On the other hand defendant Nos.1(a), 1(b), 2(a), 6 and 7
opposed chamber summons on the count that objection regarding
evidentiary value of DW1 Ajit Doshi can be adjudicated only at the
time of final hearing of the suit.
Defendant Nos.14a and 16 also resisted chamber summons on
the count that objections of plaintiff can only be considered after cross
examination and if at all at the stage of hearing of the matter and not at
this stage. Thus, all these defendants sought dismissal of chamber
summons.
5. Heard respective counsel for parties. They advanced their
submissions in accordance with respective contention of parties.
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Shri Dalal, learned advocate for plaintiff has placed reliance
upon authority in the case of Harish Loyalka and Another Vs. Dileep
Nevatia and others, Suit No.3598 of 1996, decided on 7th April,
2014, in support of his submissions and urged to allow chamber
summons.
6. Learned advocate Shri Sasidharan for defendant Nos.1(a), 1(b),
2(a), 6 and 7 vehemently argued that evidentiary facts are not to be
pleaded and at this stage exfacie it cannot be said that evidence of DW
1 is hearsay and same can be decided only after cross examination of
DW1 and at the time of final hearing. Accordingly, he submitted that
chamber summons be dismissed.
Learned Advocate Shroff for defendant Nos.14a and 16 also
supported the submission made by learned Advocate Sasidharan and
submitted that in view of judgment cited by plaintiff, at this stage, the
objection of plaintiff cannot be considered and requested to dismiss
chamber summons.
7. I have gone through chamber summons, affidavit in support of
it, reply of concerned defendants, written statement filed by defendant
Nos.1a, 1b, 2a, 6 & 7, affidavit evidence of DW1 Ajit Doshi and
carefully considered submission of learned counsel for parties.
8. In the judgment of Harish Loyalka and Another (cited supra) it
is held that, “Consequently matters that are (i) argumentative or in the
nature of submissions and pleadings etc.; (ii) matters that are wholly
irrelevant and also not to the personal knowledge of the deponent or
witness; and (iii) matters that are demonstrably hearsay, must all be
excluded. They cannot form part of the examinationinchief on affidavit
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required by CPC Order 18, Rule 4”. It is further held that, “Unless the
material is exfacie entirely and demonstrably irrelevant, the affidavit
evidence must retain the material provided it is the deposition of some fact
that is to the deponents' knowledge”.
9. In view of this legal position now, I consider the chamber
summons. Plaintiff's contention about statements in affidavit of
evidence of DW1 Ajit Doshi as pointed in schedule to chamber
summons as hearsay i.e. not to the personal knowledge of deponent is
concerned; it cannot be exfacie or demonstrably said that same are
hearsay. It is pertinent to note that defendant No.1 Ajit Doshi is one of
the partners of defendant No.7. That being so, it cannot be said at this
stage that he has no personal knowledge about the facts stated by him.
After his cross examination and at the time of final hearing it can be
adjudicated whether such evidence is hearsay or not.
10. Contention of plaintiff is also that certain statements as pointed
out in schedule to chamber summons are beyond pleadings and
particularly in relation to statements in para Nos. 22 and 23 and
chamber summons to incorporate the same has been rejected. It is
pertinent to note that in Harish Loyalka case (cites supra) authority in
the case of Harakchand Gulabchand Dhoka Vs. Kashinath Narsingh
Marathe 2010 (6) Bom CR 379 has been referred wherein a writ
petition was filed against the Trial Court's order refusing to excise
certain portions of the affidavit in lieu of examinationinchief. Those
portions were substantially the same as were earlier sought to be
introduced by an amendment to the written statement. That application
for amendment was disallowed. The Defendant then introduced the
material in the evidence affidavit, and the plaintiff sought striking out
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of the evidence on the footing that the application for amendment had
been earlier rejected and therefore such evidence ought not to be
permitted. In above facts it is held that, “Once the affidavit in lieu of
examinationinchief is filed it partakes the character of the examination
inchief of the concerned witness. There is no provision under the said Code
under which the Court can direct deletion of any portion of examination
inchief. Nevertheless, an objection can always be taken by the rival party
in writing to any objectionable portion of the affidavit. Moreover, the
attention of the witness can be always invited to said portion while cross
examining him. If there are irrelevant statements in the affidavit in lieu of
examinationinchief and if there are statements which are beyond the
scope of the pleadings, the rival party can always record his objection in
writing to the objectionable portion of the affidavit. The law is well
settled. A party to the suit cannot be permitted to travel beyond his
pleadings. If any evidence is tried to be adduced which has no foundation
in the pleadings, the Court always has a power to discard such evidence
while finally deciding the suit or proceeding”.
It is further observed that, “if on the basis of the objection, the
Court finds that certain statements made in the affidavit are beyond the
scope of the pleadings, the Court can always discard that part of the
evidence while delivering the final judgment. On the basis of such objection
raised, the Court has no power to order deletion of the certain portions of
the affidavit but the court certainly has a power to discard a part of the
evidence while deciding the suit”.
11. In view of above legal position objection as relating to certain
statements in the affidavit of evidence of DW1 Ajit Doshi are beyond
the scope of pleadings can be considered while deciding the suit. At this
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stage, it can not be said that such statements are irrelevant so relying on
above authority in the case of Harakchand Dhoka, I am not inclined to
discard or delete aforesaid statements in affidavit in lieu of
examinationinchief of DW1 Ajit Doshi on the ground that same are
beyond pleadings. Therefore, chamber summons taken out by plaintiff
deserves to be dismissed reserving his objection as to statements of
affidavit in lieu of examinationinchief of DW1 Ajit Doshi alleged to be
beyond pleadings to be decided at the time of final hearing while
deciding the suit. Hence, pass following order.
ORDER
Chamber Summons No.386 of 2019 stands dismissed. However,
plaintiff's objection as to statements of affidavit in lieu of examination
inchief of DW1 Ajit Doshi alleged to be beyond pleadings would be
decided at the time of final hearing while deciding the suit.
Accordingly, chamber summons is disposed off
(M. T. Asim)
Judge
Date : 01.03.2019 Gr. Bombay
Typed on : 01.03.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.03.2019, 5.30 a.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
01.03.2019
JUDGMENT/ORDER signed by P.O.
on
04.03.2019
JUDGMENT/ORDER uploaded on 04.03.2019
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