Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No.1005 of 2020
CNR: MHCC010027852020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.1005 OF 2020
IN
L.C.SUIT NO.03 OF 2008
Shri. Rajesh S. Patwa .. Plaintiff
V/s.
1 The Commissioner of Municipal
Corporation of Greater Mumbai & Ors. .. Defendants
Appearance:
Adv. Sharma for plaintiff.
Adv. Patil for MCGM/defendant for 1 and 2.
Adv. for def. no. 3 to 8 are absent.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 04/05/2023.
ORDER
1 The plaintiff has taken out this notice of motion for grant of
permission to lead further evidence in the interest of justice.
2 The reply of defendant Corporation is called. They have
filed the same and opposed the prayer incorporated in the notice of
motion.
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2 N.M. No.1005 of 2020
3 Heard respective advocates for plaintiff and defendants at
length.
4 The plaintiff has submitted that the plaintiff's evidence side
is already over and now the matter is fixed for cross examination of
witness of defendant No.1. However, the plaintiff is permitted to carry
out amendment in the suit as per the schedule annexed to the Chamber
Summons No.419 of 2020 and due to the amendment in the suit,
plaintiff wants to file additional evidence on record. He wants to
incorporate the facts regarding application made under RTI and reply
received from the Municipal Corporation. The permission is sought to
lead additional evidence on this limited point and for production of
documents relating to the assessment and ratable value in respect of
suit property and premises. It is stated that if plaintiff is permitted to
file additional evidence alongwith documents, the same will not cause
any harm to the other party. However, if permission is not granted, he
will suffer great loss. Hence, plaintiff prayed that the notice of motion
may be made absolute in terms of its prayer clause.
5 The defendant Corporation opposed the same on the
ground that there is no just and proper reason for leading additional
evidence. The notice of motion is not moved as per provisions of law,
hence, it is liable to be dismissed.
6 I have gone through the record of the suit. It transpires
that the matter is very old and the plaintiff has tendered his evidence
affidavit below Ex.6 on dt.23/10/2015. The witness has been cross
examined by the defendant on dt.25/3/2019. The defendant
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3 N.M. No.1005 of 2020
Corporation has placed their evidence on record on dt.20/1/2020 and
now it is fixed for cross examination of DW1 as well as the notice of
motion hearing. The suit is very old. However, there are various
changes and developments in the suit proceedings during this period.
The plaintiff wants to lead additional evidence regarding the documents
received under Right to Information Act. The suit is in respect of
impugned notice dt.18/12/2007 and order dt.27/12/2007. The
documents proposed to be produced on record may be relevant and
prove necessary for deciding the controversy on merits. The defendant
Corporation has given formal objection to the notice of motion and
other defendants remained absent. In said circumstances, I hold that the
plaintiff should not precluded from the fullest opportunity to tender
material evidence on record merely on the ground that his evidence is
already over. The Court has discretionary power to allow the parties to
tender evidence at this stage considering the ends of justice. If the
plaintiff is allowed to lead additional evidence by producing additional
documents on record, the defendant will get equal opportunity to cross
examine plaintiff's witness on the point of said documents. So no
prejudice would be caused to the other party, if opportunity is given to
the plaintiff. The issue of delay can be tackled by way of imposing cost
while allowing notice of motion.
7 Hence, considering the discussion made above, I have
arrived at the conclusion that the notice of motion deserves to be
allowed subject to costs. Hence, following order is passed.
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4 N.M. No.1005 of 2020
ORDER
1 Notice of Motion No. 1005 of 2020 is made absolute.
2 The plaintiff is permitted to lead further evidence and
produce additional documents in the interest of justice.
3 The defendants are permitted to cross examine plaintiff's
witness on the point of addidtional evidence and documents.
4 Notice of Motion is disposed off.
Date:04/05/2023.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Dictated on :04/05/2023. Gr.Mumbai.
Typed on :04/05/2023.
Signed on :04/05/2023.
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5 N.M. No.1005 of 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/05/2023 4.52 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
04/05/2023.
JUDGMENT/ORDER signed by P.O.on 04/05/2023.
JUDGMENT/ORDER uploaded on 06/05/2023.
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