Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.461-19
in Suit no. 4138-09
MHCC010023052019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 461 OF 2019
CNR NO.MHCC010023052019
IN
SUIT NO. 4138/2009
IN
HIGH COURT SUIT NO. 2176/2009
Sarla 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.
Apurva Shah
Indian Inhabitant, having his address
at 318, Adhyam Industrial Estate, Sun Mill Compound,
Lower Parel, Mumbai – 400 013 .. 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.
None for the defendant.
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in Suit no. 4138-09
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 Sarla Goel. The defendant has strongly opposed the chamber
summons by filing reply on affidavit being executed by the defendant
Apurva Shah. 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 2,30,100 shares of Shri Bajrang Alloys Ltd.
with prayer of seeking directions against the defendant to pay
Rs.3,06,100/(Rupees Three lakh six thousand and 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, 4
and 5 lies on the defendant. Upon going through the issues no.3 ,4
and 5 the burden to prove that the alleged equity shares were
transferred in favour of the defendant in accordance with the sale of
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3 Ch/sum. no.461-19
in Suit no. 4138-09
goods act for valuable 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, 4 and 5 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, 4
and 5, the burden is on the defendant by adducing evidence or
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in Suit no. 4138-09
therefore alternatively may not adduced 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, 4 and 5 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. 461/19 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.461-19
in Suit no. 4138-09
“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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