Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.798 OF 2018
IN
S.C. SUIT NO.7250 OF 2004
CNR NO.MHCCO10028432018
Manoj Punjalal Patel ..Plaintiff
V/s
1. Mohammad Ali Yusuf Shaikh and ors ..Defendants
Ld. advocate Thorat for the plaintiff
Ld. advocate Haindaday 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 permitting forensic expert, Forensic Science
Laboratory, Santacruz(East) to take photographs of
original MOU and examine the same and to file
report.
2. It is the contention of defendant no.1 that plaintiff by
using original MOU, changed and replaced page
no.2. The plaintiff after replacing original page no.2
wish to take advantage of the same. He got the deed
of confirmation dated 15/12/2004 prepared and
registered along with MOU dated 23/09/2002. The
plaintiff to mislead the Court to believe that page
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number two could not have been replaced, in the
deed of confirmation while annexing MOU, the page
number three was overleaf on page two and three are
separate and not overleaf. The plaintiff with
malafide intention wish to mislead and disbelieve
that the page number two could not have been
replaced as page number three is on the reverse of
page number two. Hence, he has filed this notice of
motion.
3. The notice of motion was opposed on the ground
that defendant no.1 took out notice of motion
no.1876 of 2005 for direction to the plaintiff to
produce original MOU for sending it to Forensic
Science Laboratory but it was dismissed by order
dated 08/12/2006. The defendant no.1 has again
taken out notice of motion no.3526 of 2008 for
direction to produce original MOU and by order
dated 11/12/2009, the Hon'ble High Court recorded
that the plaintiff has on his own produced the
original MOU. Defendant no.1 is seeking direction to
send the MOU to forensic laboratory after the
evidence and the matter is for arguments.
4. In the matter, the evidence of the parties have been
closed. The matter was placed for arguments. On
25/01/2018 the predecessor of this Court passed
order that Hon'ble High Court has allowed to take
inspection through private Forensic expert
laboratory. Liberty was granted to apply for the
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private Forensic expert laboratory in the event of the
forensic expert not being available. It was held by
the Predecessor in December 2009 itself, it was for
the party to take inspection of the R & P, to take
inspection of the document to get it examined by the
FSL or private FSL, which is not done by either party.
By holding the same, the evidence of defendant no.1
was closed and the matter was placed for argument.
On perusal of the record it appears that the original
MOU is on record. The said original document is not
proved in evidence. The evidence of the parties are
closed and matter is fixed for arguments. In this
background, there is no purpose in considering the
present notice of motion. Apart from that the order
of the Hon'ble High Court dated 11/12/2009 in
Notice of motion No.3526 of 2008 is a speaking
order. For ready reference para.2 of the said order is
reproduced as under:
“The parties are at liberty to take inspection of the
documents as also through handwriting experts. The
same however shall be done only after notice to and
in presence of the parties and in presence of the
officer of this Court. The parties shall also be
entitled to take the inspection through the private
forensic expert. Liberty to apply in the event of the
private forensic expert not being available.”
5. When the Hon'ble High Court has given liberty to
take the inspection of the documents as also through
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forensic expert it was not availed by the parties.
Again passing order for getting the document to be
inspected by forensic expert would amount to over
reaching the order of the Hon'ble High Court in
Notice of motion no.3526 of 2008. Even otherwise
the defendant has not made out the ground for
examination of the document by the forensic expert
after closing of evidence and when the original MOU
is not brought in the evidence. In view of the matter,
notice of motion needs no consideration. Hence, it is
expedient to pass folowing order:
ORDER
1. Notice of Motion No.798/2018 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
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Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
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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