Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
COMMON ORDER BELOW NOTICE OF MOTION NO.361 OF 2019 &
1015 OF 2019
IN
S.C. SUIT NO.8292 OF 1984
Om Prakash Navani … Plaintiff
V/s.
Rustom Kumana & Ors. … Defendants
Appearances :
Ld. Adv. Bhadang with Adv. Dhiren Shah for plaintiff.
Ld. Adv. Gautam Mehta for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 16th SEPTEMBER, 2019
ORDER
Defendants have taken out these notice of motion for filing
addition evidence affidavit of DW1 Naushir Dara Anklesaria.
2. It is argued on behalf of defendant that DW1 Naushir Dara
Anklesaria has already filed his evidence affidavit on 03.04.2018 at
Exh.78 while the compilation of documents are filed on record at
Exh.33A and Exh.33B. While filing first affidavit witness was not sure
as to whether he could depose on the documents cited in the evidence
affidavit. However, later on in discussion with trustees he learnt that
the documents are more than 30 years old and therefore without any
MHCC01000927201 9
MHCC01002634201 9
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Common Order Below NM 361/19 & 1015/19 .. 2 .. Suit No.8292/84
personal knowledge he can depose about those documents. Therefore,
accordingly he has filed addition evidence affidavit. The cross
examination is yet to start. Plaintiff will get full and fair opportunity to
crossexamine the witness. Therefore filing of addition evidence
affidavit will not cause any prejudice to plaintiff. So also the provisions
of Order 18 Rule 4 of CPC will not restrict party from filing more than
one affidavits of any witness. As such the Ld. Counsel for defendant
prayed for permission to file addition evidence affidavit on record.
3. The Ld. Counsel for plaintiff has opposed these application
on the ground that as per Order 18 Rule 4 of CPC witness can file only
one affidavit. So also affidavit once filed cannot be taken back. Here,
defendant want to bring certain facts on record which are omitted in
earlier evidence affidavit. As such defendant cannot be permitted to
fill up the lacuna in earlier evidence affidavit. Apart from it defendant
has filed addition evidence affidavit just to delay the matter and to
harass the plaintiff from getting the decree. Therefore on both count
defendant cannot be permitted to file addition evidence affidavit.
4. Both the Ld. Counsel have argued on the provisions of
Order 18 Rule 4 of CPC. It speaks about recording of evidence in which
party can file examinationinchief of witness by way of affidavit. No
where it says that party can file only one affidavit of witness and
precluded for filing more than one affidavits. As such there is no
express bar in Order 18 Rule 4 of CPC for filing more than one affidavits
of any witness. The main grievance of Ld. Counsel for plaintiff is that
by way of addition evidence affidavit defendant is trying to bring the
evidence on record which was omitted in first evidence affidavit. On
the other hand the Ld. Counsel for defendant has relied on following
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citations....
(I) Testamentary Suit No.65/2005 Mrs. Aban Homa Petit & Anr.
Vs Naryosang D. Cassad Bombay High Court dated 04th March,
2015, 2018(1) Mh.L.J. Digambar Ramchandra Bawaskar Vs. Soma
Prabhu Pawar & Ors. Page No.169 and 2008(2) ALL MR Page No.
460.
In all these citations the issue under consideration was whether
party can be permitted to file more than one evidence affidavit and can
be allowed to withdraw earlier evidence affidavit. Here, it is nobody's
case that defendant want to withdraw earlier evidence affidavit.
Therefore that issue will not require further discussion.
5. On the point of filing of more than one evidence affidavit it
is categorical observed in all the citations that “nothing in Order 18
Rule 4 of CPC limits witness from filing more than one evidence
affidavit. What is important is that before start of crossexamination all
the evidence affidavits must be on record. It is further observed that
after start of crossexamination party may not be permitted to file
evidence affidavit. In case of clarification witness can file addition
evidence affidavit. There can be no possible objection for it. Because
the opposite party will get full opportunity of crossexamination
including as to why some statements are not made in earlier evidence
affidavit.
6. As such above observations clearly show that there is no
restriction on filing more than one evidence affidavits of any witness.
So also by way of precaution those have to be filed before start of cross
examination. Here, also the crossexamination yet to start. Whether
addition affidavits are filed for filling up lacuna or otherwise is a part of
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trial and will be seen at appropriate stage. Even as per above
observation plaintiff will get full opportunity to crossexamine the
witness including plaintiff's defence about filling up of lacuna. As such
there is no reason to restrict defendant from filing addition evidence
affidavits of DW1. Therefore on factual as well as on legal aspect the
objection raised by plaintiff will not sustain. According the order.
ORDER
1. NM Nos.361/19 and 1015/19 are hereby allowed.
2. Defendant is permitted to file additional evidence affidavit
of his witness on paying cost of Rs.2,000/ to plaintiff or to
deposit it in the Court on or before next date.
3. After compliance of cost order the additional evidence
affidavit be taken on record.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 16/09/2019 City Civil Court, Gr. Mumbai
Dictated on : 16.09.2019
Transcribed on : 17.09.2019
Signed on : 20.09.2019
sbk/
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
21.09.2019 01.55 p.m. Sanjay Baliram Kaskar
(Stenographer Higher Grade)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
16.09.2019.
Judgement/order signed by P.O on 20.09.2019.
Judgement/order uploaded on 21.09.2019.
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