Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.460-19
in Suit no. 4117-09
MHCC010023042019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 460 OF 2019
CNR NO.MHCC010023042019
IN
SUIT NO. 4117/2009
IN
HIGH COURT SUIT NO. 2137/2009
Aruna Goel
Indian Inhabitant, having her address
at New Timber Market Fafadih, P.O.Raipur (C.G.)
492 009 Through her Constituted Attorney,
Mr. Atul Rasiklal Chitalia. .. Plaintiff
V/s.
Saba Khan
Indian Inhabitant, having her address
at Natraj , A402, Yari Road, Versova, Near
Madinah Masjid, Andheri (West), Mumbai. .. Defendant
CORAM : HIS HONOUR JUDGE
SHRI KISHORE M. JAISWAL
(COURT ROOM NO.14)
DATE : 25TH DAY OF FABRUARY, 2021
Adv.Samruddhi Sonar I/b M/s.Dhruve Liladhar & C o. for plaintiff.
Adv. Shraddha Prajapati I/b M/s. Mahesh Shah and Co. for the
defendant.
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2 Ch/sum. no.460-19
in Suit no. 4117-09
ORAL ORDER
This chamber summons is taken out by the plaintiff for
allowing to lead rebuttal evidence for the issues on which the burden
of proving lies on the defendant as provided under Order 18 Rule 3
of the Code of Civil Procedure ( in short 'CPC' ). Perused the chamber
summons which is supported by an affidavit being executed by the
plaintiff Aruna Goel. The defendant has strongly opposed the
chamber summons by filing reply on affidavit being executed by the
defendant Saba Khan. The plaintiff has filed rejoinder affidavit. Both
the parties have filed the written submissions and has submitted that
this Court upon going through the same should pass the order.
Today the learned advocate Smruddhi Sonar for the plaintiff and
learned advocate Shraddha Prajapati for the defendant is present. In
their presence and after perusing the record, this Court is passing
order on this chamber summons.
2. The main suit is for declaration against the defendant to
deliver to the plaintiff 35,100 shares of Shri Bajrang Alloys Ltd. with
prayer of seeking directions against the defendant to pay Rs.46,800/
(Rupees Fourty six thousand eight hundred only) along with interest
@ 18% p.a. from the date of filing of suit till its realization. The
written statement has been filed specifically denying the contents of
the plaint. My learned predecessor as per Exh.3 has framed the
issues. On perusal of the issues the burden to prove issues no.1 and 2
lies on the plaintiff and the burden to prove issues no. 3 and 4 lies on
the defendant. Upon going through the issues no.3 and 4 the burden
to prove that the alleged equity shares were transferred in favour of
the defendant in accordance with the sale of goods act for valuable
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3 Ch/sum. no.460-19
in Suit no. 4117-09
consideration during the alleged period lies on the defendant. As per
the provisions of Order 18 Rule 3 of the CPC. Where there are several
issues, the burden of proving some of which lies on the other party,
the party beginning may, at his option, either produce his evidence on
those issues or reserve it by way of answer to the evidence produced
by the other party; and, in the latter case, the party beginning may
produce evidence on those issues after the other party has produced
all his evidence, and the other party may then reply specially on the
evidence so produced by the party beginning. This chamber summons
is preferred in consonance with issues no.3 and 4 and the plaintiff has
placed reliance on the following two cases: 1) Shahnawazkhan Vs.
Azarunnisa Begum reported 2012(3) Mh.L.J.page 143. and 2)
Nipendrachandra Bid Vs. Rajaramka Pulp And Paper Mills Ltd.,
reported in 1979 Mh.L.J.page 220. By placing reliance on the
aforesaid rulings, it is submitted that Order 18 Rule 3 of the CPC
provides for option to the parties to reserve their right to lead rebuttal
evidence. I find substance in the argument advanced by the learned
advocate for the plaintiff as the provisions of Order 18 Rule 3 of CPC
itself is very clear and the plaintiff has rightly placed reliance on the
aforesaid rulings which makes it clear that no particular stage is
prescribed to reserve right for rebuttal evidence. So also from the
aforesaid rulings it is aptly clear that the party, who begins either can
produced evidence on such issues or party, who begins, by way of
answer to the evidence produced by the other party can reserve its
rights. In the present case the plaintiff will begin with the evidence
and the plaintiff may lead evidence on issues no. 1 and 2 and
regarding issues no.3 and 4, the burden is on the defendant by
adducing evidence or therefore alternatively may not adduced
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in Suit no. 4117-09
evidence but can reserve it right for rebuttal evidence by the
defendant . Thus in my considered opinion in view of Order 18 Rule
3 of CPC the plaintiff can be permitted to reserve its rights to lead it
evidence in rebuttal and the said right can be exercised by leading
rebuttal evidence so far as issues no. 3 and 4 are concerned. The
objection raised by the defendant cannot be considered in view of the
ratio laid down in the ruling cited supra. Order 18 rule 3 of CPC
unequivocally grant right in favour of the plaintiff to reserve the right
to its evidence in rebuttal. Therefore this chamber summons needs to
be allowed in the interest of justice and further considering the
nature of the suit with the issues which are framed therein. Hence, I
pass the following order.
ORDER
1. Chamber summons no. 460/19 is allowed and made
absolute in terms of prayer clause (a)
2. Chamber summons is disposed of accordingly
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.25.02.2021 Court, Gr.Mumbai (C.R.No.14)
Dictated on : 25.02.2021
Transcribed on : 26.02.2021
Signed on :
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5 Ch/sum. no.460-19
in Suit no. 4117-09
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 03.03.2021 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME: pm
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.14)
Date of Pronouncement of JUDGEMENT/ORDER 25.02.2021
JUDGMENT/ORDER signed by P.O. on 02.03.2021
JUDGEMENT/ORDER uploaded on 03.03.2021
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