Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.797 OF 2018
IN
S.C. SUIT NO.7250 OF 2004
CNR NO.MHCCO10028422018
Manoj Punjalal Patel ..Plaintiff
V/s
1. Mohammad Ali Yusuf Shaikh and ors ..Defendants
Ld. advocate Thorat for the plaintiff
Ld. advocate Hindaday for the defendants
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 16/07/2019
ORAL ORDER
1. This notice of motion is tendered by defendant no.1
for recalling DW1 for examinationinchief or re
examination.
2. Heard. The Ld. Counsel for defendant No.1
submitted that the plaintiff has filed compilation of
documents dated 18/02/2014 wherein he has filed
document at Ex.11 which is certified copy of
registered Deed of Confirmation dated 15/10/2014
alongwith MOU dated 23/09/2002. The plaintiff
with intention to mislead the Court intentionally
referred that page number three is overleaf to page
number 2(page number three on the reverse of page
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number 2). Document Ex.16 was shown to DW1
during cross examination on 17/11/2017. In
response to the suggestion by showing Ex.16, DW1
has stated that the page number two i.e. running
page number 26 of list of document Exhibit 5 is the
overleaf of page number three i.e. running page
number 27 of Exhibit 5. The said suggestion was
totally misleading as the original MOU was never
shown wherein page nos.2 and 3 are separate. By not
showing the original MOU the plaintiff wants to
demonstrate that in the original MOU also the page
number three is overleaf to the page number two
which is factually incorrect. The said suggestion is
put to misguide the Court from true facts. There was
no possibility of removing page number two, as page
three is overleaf of page number two. The leave is
sought under O 18 R 17 of the C.P.C. by which the
witness can be recalled for reexamination.
3. The notice of motion is opposed by the plaintiff on
the count that there is no ambiguity in the cross
examination of defendant no.1. Full opportunity was
given to DW1. No case is made out for recalling
him.
4. On perusal of the ground for recalling of DW1, is
that DW1 wish to clear doubt which the plaintiff has
brought by not showing the original MOU with
intention to mislead that the page number three is
overleaf of page no.2 in the original MOU. It appears
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on perusal of the evidence of DW1 that the
document was shown to DW1 and accordingly the
questions were put to him, which he replied.
Thereafter, on 17/11/2017 cross examination was
deferred and further cross examination of DW1 was
carried out on 02/01/2018. On 02/01/2018, the
evidence of DW1 was completed. DW1 has not
taken any effort to press for his reexamination on
the ground of ambiguity and has not made any
statement that the plaintiff has mislead the Court by
not showing original MOU to the witness. It was also
not pointed out that the plaintiff wish to impress
upon the Court that page no.3 is overleaf of page
no.2 by showing copy of MOU(Ex.12) . The notice of
motion is tendered on 25/02/2018 after a period of
four months. The scope of reexamination is not to
fill up the lacuna. The scope of reexamination as
contemplated u/s. 138 of the Evidence Act 1872. The
grounds for the recall of the witness should be
sufficient to meet the requirement of section 138 of
the Evidence Act. The document was referred to the
witness during crossexamination and his attention
was drawn and the witness after going through the
contents of the document had given the answer.
Even DW1 had an occasion to clear the ambiguity, if
any, on 02/01/2018 by pressing for reexamination
of witness. Thereafter the matter was fixed for
argument. By this notice of motion the defendant
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wish to fill up the lacuna. The admission given by
the witness cannot be overcome by exhausting the
provisions of order 18 rule 17 of the CPC on bare
statement that the plaintiff wish to mislead the
Court. The provisions of order 18 rule 17 of the CPC
are to be sparingly used and the case of inherent
ambiguity is to be pointed. No ambiguity has been
pointed. This notice of motion is nothing but abuse
of process of law. No ground is made out under
order 18 Rule 17 of the C.P.C. The notice of motion
needs no consideration. Hence, it is expedient to
pass following order:
ORDER
Notice of Motion No.797/2018 stands rejected.
16/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 16/07/2019
Transcribed on : 18/07/2019
Signed on : 03/08/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
03/08/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
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Date of Pronouncement of
judgment/order
16/07/2019
Judgment and order signed by P.O. 03/08/2019
Judgment/order uploaded on 03/08/2019
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