Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1006 OF 2019
IN
SUIT NO.7408 OF 1996
(HIGH COURT SUIT NO.621 OF 1996)
HARESH SHANTICHAND JHAVERI ...Plaintiff.
V/s.
I.T.C. LIMITED & ORS. ...Defendants.
Appearances:
Ld. Adv. Mr. Abdul Mukri for plaintiff
Ld. Adv. Mr. Samdhani for defendant No.19
Ld. Adv. Mr. R.S. Tripathi for defendant Nos.26 (a) to 26 (d).
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 16th April,2019
ORDER
By way of this notice of motion plaintiff prayed to allow him to
reopen his evidence and to file additional list of documents and re
examine PW1.
2. In supporting affidavit plaintiff submitted that, he has filed this
suit for recovery of shares and other reliefs against defendants. During
the pendency of the suit, defendant No.1 ITC Limited had issued
duplicate shares in the name of plaintiff with respect to 2200 shares and
plaintiff has withdrawn the suit with respect to the said 2200 shares.
Plaintiff further withdrawn the suit in respect of 100 shares pertaining
to defendant No.35. Therefore, plaintiff is seeking relief in the present
suit in respect of 2128 shares only.
MHCC01-002615-2019
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3. Plaintiff further submitted that, during the stage of the evidence,
an application dt.06.08.2016 was moved for issuance of witness
summons against defendant No.1 company. The said witness summons
has been served on defendant No.1 on 13.08.2016. However,
defendant No.1 company did not produce documents called for. As
defendant No.1 was in process of issuing duplicate shares in the name
of plaintiff in respect of 200 shares of defendant No.1 company which
were standing in the name of Maharashtra Executor & Trust Company
Private Limited, hence plaintiff did not take any unpleasant steps
against defendant No.1 company. However, plaintiff was in contact
with defendant No.1 company constantly and it was informed that it is
unable to trace the old record.
4. However, on 30.10.2018 once again plaintiff forwarded the copy
of witness summons dt. 09.08.2016 to defendant No.1 company and
requested to comply with the said witness summons and also to provide
copies of the said documents to plaintiff. Defendant No.1 vide its letter
No.C/211C74597/Isc/Oth/34573) dt.12.12.2018 forwarded to plaintiff
photocopies of transfer deeds, share certificates and objection memos in
respect of 300 suit shares. Plaintiff received the said letter and copy in
the office. However, the same was kept with other document due
which plaintiff lost it site over the said doucments. While sorting the
dividends warrants in the month of February,2019 the said letter was
noticed by plaintiff and immediately informed their Advocate, who had
appraised this Court about the said letter.
5. In these circumstances, plaintiff prayed to permit him to reopen
his evidence to place on record the said letters and to lead the evidence
in respect of it. If plaintiff is not permitted to do so, it would cause
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grave, irreparable, harm, loss injury and on the other hand defendants
will not suffer any prejudice and therefore, prayed that notice of motion
be made absolute.
6. Copy of notice of motion sought to be served upon the contesting
defendants out of 84 defendants in this matter. Out of which defendant
Nos.5 and 6 filed their reply and strongly opposed the notice of motion.
They submitted that it is nothing but misuse and abuse of process of law
with an intention to further delay the hearing of the case when the final
argument was already began by plaintiff and took so much time of this
Court to submit his argument 12.10.2018, 15.11.2018, 03.12.2018,
11.12.2018 and sought adjournment on 20.12.2018, 31.01.2019 and
05.02.2019. Therefore, question of now permitting plaintiff to reopen
the case at such belated stage on the ground as alleged has no
substance and therefore, notice of motion deserves to be rejected.
7. They further submitted that, plaintiff by filing pursis on
06.08.2016 closed their side of recording evidence and thereafter,
evidence of defendant was recorded and it was closed on 25.01.2018.
Thereafter, matter came before this Court for argument and various
dates were taken by plaintiff on one or other count, but there is no
whisper or steps taken by the plaintiff about the ground put forth by
plaintiff in the application about issuance of witness summons to
defendant No.1 to call the documents. As such documents are of no
rescue to plaintiff and does not have any impact on the present case.
Therefore, on this ground itself notice of motion deserves to be
dismissed with heavy costs. It is intentional delay caused by plaintiff
and failed to take out any case on merits and therefore, questions of
reopening the evidence and point out any law where he can make any
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application before this Court at the end of final hearing without any
sufficient cause to explain the delay, question of entertaining notice of
motion does not arise and therefore, prayed that, notice of motion
deserves to be dismissed with heavy costs.
8. The Ld. Advocate appearing for defendant No. 25 have also filed
written reply and strongly opposed the notice of motion. He submitted
that said notice of motion is not permissible under O.XVIII R.17 of
C.P.C. No such permission can be granted to reopen the evidence nor
parties having right to do so. It is plaintiff who has on one or other
grounds prolonged the matter for the best reason known to them and
therefore, no such provision to grant permission to lead the additional
evidence, oral or documentary, before this Court which is required for
assistance in rendering justice. When this Court has permitted plaintiff
to issue witness summons, obviously closed the door of plaintiff at such
belated stage to reopen the matter. Therefore, notice of motion having
no substance deserves to be dismissed with heavy costs.
9. Heard learned Advocate Mr. Abdul Mukri for plaintiff, learned
Advocate Samdhani for defendant No.19 and learned Advocate R.S.
Tripathi for defendant No.26 (a) to (d) at length. Perused their
submission along with citation relied upon.
10. This is a suit of the year 1996 in respect of shares, which has been
initially tendered before Hon'ble Bombay High Court and due to
enhancement of pecuniary jurisdiction of this Court, came to be
transferred to the City Civil Court, Mumbai. Thereafter, on the point of
contesting defendants on 17.06.2014 and 22.01.2019 issues and
additional issues came to be framed and plaintiff tendered his evidence
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on 13.08.2014 vide Exh.12 and filed compilation of documents at
Exh.13. Thereafter, documents were exhibited and crossexamination
of PW1 was started and final crossexamination came to be closed on
15.11.2016. Thereafter, plaintiff has moved various applications for
withdrawing suit against defendants and thereafter, change their cause.
On 06.08.2016 plaintiff has filed list of witness at Exh.47 and also
moved an application at Exh.48 for issuance of witness summons. That
was allowed on the same day, but plaintiff did not take steps for the
compliance for the reasons best known to him. Thereafter, witness
summons was also taken up against BSC Limited vide Exh.49 to
produce the documents, which was allowed and after examining PW2
Ravindra Palande vide Exh.52 on 15.11.2016 and on the same day vide
Exh.53 closed their evidence.
11. Defendant Nos.5 and 6 had also moved an application for
issuance of witness summons for production of the documents which
was allowed and thereafter, evidence side of defendant Nos.5 and 6
came to be recorded and they closed it by filing pursis at Exh.98 on
25.01.2018. Thereafter, matter was kept for evidence of rest of the
defendants, but did not take pain to appear and on 02.04.2018 matter
was proceeded for final argument. Thereafter, learned counsel for
plaintiff started his argument in the part and at the verge of final
hearing of the argument, the application for recasting of issues came to
be moved. Accordingly, issues came to be recasted on 22.01.2019 and
again final argument were proceeded.
12. It is necessary to mention here that, Out of 82 defendants,
plaintiff has filed this suit, out of which against defendant Nos.1, 2, 3,
4, 7 to 10 suit came to be proceeded exparte and against defendant
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Nos. 27 to 34, 36 to 37, 40 to 42, 44 to 52, 55 to 70, 72 to 83
proceeded without written statement. Defendant Nos. 5, 6, 11, 12, 19,
20, 21 to 26, 35, 38, 39, 43, 53, 54 tendered their written statement on
record and opposed the claim. Meanwhile when argument was going on
defendant No.26 was reported expired and therefore, Chamber
Summons NO.706 of 2019 was taken out to bring his legal heirs i.e
defendant Nos.26 (a) to 26 (d), which came to be allowed on
03.04.2019 and this notice of motion came to be tendered on
07.03.2019.
13. After brief history of this suit, now plaintiff wants to reopen the
case to lead the evidence in respect of documents which was received
by him from defendant No.1. On 12.12.2018. If plaintiff was in custody
of these received documents, then plaintiff must have taken steps at the
relevant time. However submission is that, the documents was kept
along with other documents having correspondence pertaining to the
dividends, shares and while sorting dividend warrant in the month of
February,2019, plaintiff got the said letter and informed his Advocate to
take out this notice of motion for 07.03.2019.
14. It point out that, since 12.12.2018 till 07.03.2019 when final
argument was going on, plaintiff was holding that document in his
custody, but it was not produced, may be intentionally, before this
Court nor reference was made and when the matter was on the verge of
conclusion of final argument, plaintiff woke up and tendered this notice
of motion with the relief sought. The prayer in the notice of motion is
specific carved out to allow plaintiff to reopen his evidence and to file
additional list of original documents and reexamine PW1. So it is
nothing, but reopening of the entire case, when matter is already
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proceeded and on the verge of conclusion of the final argument on side
of plaintiff when the learned counsel for the defendants mean while had
already putforth their submission during the course of argument. So it
is an attempt to turn the wheel back, which is not permissible at all.
15. When this plaintiff is within full knowledge that, they have
issued witness summons to defendant No.1 by order of this Court and
served it on 13.08.2016, but did not take pain to call defendant No.1 to
produce the documents. Now, they are wake up from the deep slumber
and tender the document, which is even found much prior to three
months before conclusion of final argument by plaintiff. In such
circumstances, primafacie, it appears that, plaintiff wants to recall the
witness and produced the documents, when such stage was already
gone and plaintiff already availed his right to do so and filed evdience
closure pursis.
16. If we go through the provisions of O.XVIII R.17 of C.P.C. for
recalling of witness and its scope and object taken into consideration, as
per the observations of the Hon'ble Apex Court in the case of
BAGAI CONSTRUCTION, THROUGH ITS PROPRIETOR LALIT BAGAI
Versus GUPTA BUILDING MATERIAL STORE, (2013) 14 SCC the
Hon'ble Apex Court has observed in para Nos.9,10,11,12 and ruled that,
there is no reasonable reason or cause has been shown by plaintiff as to
why these documents were not placed on record by plaintiff during the
entire trial and it has been mentioned in para No.15 that in fact
application for adjournments, reopening and recalling are interim
measures, could be as far as possible avoided and only in compelling
and acceptable reasons, those applications are to be considered.
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17. The observations of Hon'ble Apex Court in para Nos.9,10,11,12
are reproducede as it is:
9) In Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar Gogate,
(2009) 4 SCC 410, this Court had an occasion to consider similar claim,
particularly, application filed under Order XVIII Rule 17 and held as
under:
“25. In our view, though the provisions of Order 18 Rule 17
CPC have been interpreted to include applications to be filed
by the parties for recall of witnesses, the main purpose of the
said Rule is to enable the court, while trying a suit, to clarify
any doubts which it may have with regard to the evidence led
by the parties. The said provisions are not intended to be used
to fill up omissions in the evidence of a witness who has
already been examined.
28. The power under the provisions of Order 18 Rule 17 CPC
is to be sparingly exercised and in appropriate cases and not
as a general rule merely on the ground that his recall and re
examination would not cause any prejudice to the parties.
That is not the scheme or intention of Order 18 Rule 17 CPC.
29. It is now well settled that the power to recall any witness
under Order 18 Rule 17 CPC can be exercised by the court
either on its own motion or on an application filed by any of
the parties to the suit, but as indicated here in above, such
power is to be invoked not to fill up the lacunae in the
evidence of the witness which has already been recorded but
to clear any ambiguity that may have arisen during the course
of his examination.
31. Some of the principles akin to Order 47 CPC may be
applied when a party makes an application under the
provisions of Order 18 Rule 17 CPC, but it is ultimately within
the court's discretion, if it deems fit, to allow such an
application. In the present appeal, no such case has been
made out.”
10) If we apply the principles enunciated in the above case and the
limitation as explained with regard to the application under Order 18
Rule 17, the applications filed by the plaintiff have to be rejected.
However, learned counsel for the respondent by placing heavy reliance
on a subsequent decision, namely, K. K. Velusamy vs. N. Palanisamy
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(2011) 11 SCC 275, submitted that with the aid of Section 151 CPC, the
plaintiff may be given an opportunity to put additional evidence and to
recall PW1 to prove those documents and if need arises other side may
be compensated. According to him, since the High Court has adopted
the said course, there is no need to interfere with the same.
11) In Velusamy even after considering the principles laid down in
Vadiraj Naggappa Vernekar and taking note of Section 151 CPC, this
Court concluded that (K. K. Velusamy Case, SCC p.286, para 22)
“22... in the interests of justice and to prevent abuse of the process of
the Court, the trial Court is free to consider whether it was necessary to
reopen the evidence and if so, in what manner and to what extent....”
12) Further, it observed that the evidence should be permitted in
exercise of its power under Section 151 of the Code. The following
principles laid down in that case are relevant: (K. K. Velusamy Case,
SCC p.285 para 19)
“19. We may add a word of caution. The power under Section
151 or Order 18 Rule 17 of the Code is not intended to be
used routinely, merely for the asking. If so used, it will defeat
the very purpose of various amendments to the Code to
expedite trials. But where the application is found to be bona
fide and where the additional evidence, oral or documentary,
will assist the court to clarify the evidence on the issues and
will assist in rendering justice, and the court is satisfied that
nonproduction earlier was for valid and sufficient reasons,
the court may exercise its discretion to recall the witnesses or
permit the fresh evidence. But if it does so, it should ensure
that the process does not become a protracting tactic. The
court should firstly award appropriate costs to the other party
to compensate for the delay. Secondly, the court should take
up and complete the case within a fixed time schedule so that
the delay is avoided. Thirdly, if the application is found to be
mischievous, or frivolous, or to cover up negligence or
lacunae, it should be rejected with heavy costs.”
If these observations is considered in the light of facts and
circumstance of this matter, it is plaintiff who intentionally withheld the
documents till the final argument was commenced and even the
additional issues came to be framed on 22.01.2019 and even though
plaintiff was within full knowledge about that opportunity is available
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at that time. Furthermore, there is no compelling and acceptable
circumstances/reasons placed by plaintiff to recall his witness to reopen
the case to exercise the exclusive jurisdiction of the Court. Under the
provisions of O.XVIII R.17 production of documents or recalling of any
witness, who has been examined, is required at any stage if Court thinks
fit is necessary for just and proper decision of the matter.
18. Admittedly, inherent powers vested under Section 151 of C.P.C.
cannot be used when there is specific provisions available under C.P.C.
as per settled position of law. Therefore, when an opportunity was
already available to plaintiff to lead his evidence and produced the
documents when he was permitted to issue writ of summons to
defendant No.1, it was not availed by him and now only after cross
examination of the witness to fill up lacunae he cannot be permitted to
recall the witness.
19. Even the observations of Hon'ble Bombay High Court in the case
of M/s. Mukund Iron Staff Association Coop. Housing Society Ltd.
Versus Vasant Ramchandra Patil & ors. (in Writ Petition No.7688
of 2013, decided on 18.02.2015) in respect of jurisdiction of this
Court to invoke provisions of Section 151 of C.P.C by relying over the
authority of Hon'ble Apex Court in the case of K.K. Velusamy v/s. N
Palansamy it has been observed in para No.12 that :
“12 The respondent contended that section 151 cannot be used for
re opening evidence or for recalling witnesses. We are not able to
accept the said submission as an absolute proposition. We however
agree that section 151 of the Code cannot be routinely invoked for
reopening evidence or recalling witnesses. The scope of section
151 has been explained by this Court in several decisions (See :
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Padam Sen vs. State of UP AIR 1961 SC 218; Manoharlal Chopra
vs. Seth Hiralal AIR 1962 SC 527; Arjun singh vs. Mohindra
Kumar AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P)
Ltd. vs. Kanhay Lal AIR 1966 SC 1899; Nain Singh vs.
Koonwarjee 1970 (1) SCC 732; The Newabganj Sugar Mills
Co.Ltd. vs. Union of India AIR 1976 SC 1152; Jaipur Mineral
Development Syndicate vs. Commissioner of Income Tax, New
Delhi AIR 1977 SC 1348; National Institute of Mental Health &
Neuro Sciences vs. C. Parameshwara 2005 (2) SCC 256; and
Vinod Seth vs. Devinder Bajaj 2010 (8) SCC 1). We may
summarize them as follows:
(a) Section 151 is not a substantive provision which creates or
confers any power or jurisdiction on courts. It merely recognizes
the discretionary power inherent in every court as a necessary
corollary for rendering justice in accordance with law, to do what
is `right' and undo what is `wrong', that is, to do all things
necessary to secure the ends of justice and prevent abuse of its
process.
(b) As the provisions of the Code are not exhaustive, section 151
recognizes and confirms that if the Code does not expressly or
impliedly cover any particular procedural aspect, the inherent
power can be used to deal with such situation or aspect, if the ends
of justice warrant it. The breadth of such power is coextensive
with the need to exercise such power on the facts and
circumstances.
(c) A Court has no power to do that which is prohibited by law or
the Code, by purported exercise of its inherent powers. If the Code
contains provisions dealing with a particular topic or aspect, and
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such provisions either expressly or necessary implication exhaust
the scope of the power of the court or the jurisdiction that may
exercised in relation to that matter, the inherent power cannot be
invoked in order to cut across the powers conferred by the Code or
a manner inconsistent with such provisions. In other words the
court cannot make use of the special provisions of Section 151 of
the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the
powers specifically conferred, a court is free to exercise them for
the purposes mentioned in Section 151 of the Code when the
matter is not covered by any specific provision in the Code and the
exercise of those powers would not in any way be in conflict with
what has been expressly provided in the Code or be against the
intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly
cautious, as there is no legislative guidance to deal with the
procedural situation and the exercise of power depends upon the
discretion and wisdom of the court, and the facts and
circumstances of the case. The absence of an express provision in
the code and the recognition and saving of the inherent power of a
court, should not however be treated as a carte blanche to grant
any relief.
(f) The power under section 151 will have to be used with
circumspection and care, only where it is absolutely necessary,
when there is no provision in the Code governing the matter, when
the bonafides of the applicant cannot be doubted, when such
exercise is to meet the ends of justice and to prevent abuse of
process of court.”
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It has been further observed that : “... the need for the court
to act in a manner to achieve the ends of justice (subject to the
need to comply with the law) does not end when arguments are
heard and judgment is reserved. The Apex court further held that if
there is abuse of the process of the Court, or if interests of justice
require the court do do something or take note of something, the
discretion to do those things does not disappear merely because
the arguments are heard either fully or partly.” It has been further
observed that : “application is found to be bonafide and where the
additional evidence, oral or documentary, will assist the court to
clarify the evidence on the issues and will assist in rendering
justice, that the application is required to be allowed.”
20. In view of above observations, there is no such assistance
available to plaintiff, which requires to be taken on record for factual
aspect, as mentioned in the notice of motion by plaintiff to allow him to
produce the document which was withheld by him when argument was
partly heard and at the verge of conclusion to reopen the evidence and
to lead further evidence by production of the documents about which
there is no pleading even there is no plausible explanition which the
plaintiff kept mum for the three months when he has received that
documents and have knowledge about the same. It is glaring
mischievous on the part of the plaintiff nothing but to fill the lacuna in
his case, which is not at all permissible. Therefore, notice of motion
tendered by plaintiff is liable to be rejected. However, it is proper to
direct the parties to bear their costs and hence, I proceed to pass the
following order :
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O R D E R
1. Notice of Motion No.1006 of 2019 in Suit No.7408 of
1996 (in High Court Suit No.621 of 1996) stands rejected.
2. Parties to bear their costs.
(ABHIJEET A. NANDGONKAR )
Judge, (C.R.No.20)
Dt.: 16/04/2019 City Civil Court, Gr. Mumbai
Dictated on : 16.04.2019
Transcribed on : 18.04.2019
Signed on : 20.04.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.04.2019 at 2.44 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 16.04.2019
Judgment/order signed by P.O. on 20.04.2019
Judgment/order uploaded on 20.04.2019
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