Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-821-18 Suit.9285-99
CNR NO. MHCC01 0029282018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.821 OF 2018
IN
S.C. SUIT NO.9285 OF 1999
(H.C. SUIT NO.5039 OF 1999)
Dr. (Mrs.) Hemlata Arun Deshmukh ] .. Plaintiff.
Versus
1. Mr. V.R. Patil ]
2. Mr. S.M.Patil, ]
3. Mr. A. Sharma, ]
4. Mrs. Nalini Sharma, ]
5. Mrs. Surekha Sarpotdar, ]
6. Mr. B.P. Shinde, ]
7. Mr. Umesh Kamat, ]
8. Mr. S.R. Babar. ].. Defendants.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 13th August, 2018.
Adv. Aarti Bhide for plaintiff.
Adv. Y.D.Patil for defendants present.
ORDER
The defendants have taken out this notice of motion for
striking out the paras of the affidavit in examinationinchief of the
witness No.2 of the plaintiff.
2. The defendants have submitted that in the evidence of
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defendant No.2 completely new facts are disclosed, which are not part
of the plaint and evidence of the plaintiff herself. The affidavit of
evidence had travelled beyond the pleadings and taken the defendants
by surprise. Therefore, the defendants have taken out the present
notice of motion.
3. The plaintiff filed reply contending that the P.W.2 Arun
Deshmukh is husband of the plaintiff. Affidavit evidence is filed on
behalf of her husband as a witness and same is necessary to bring the
true facts and circumstances before the court and for dealing with the
pleadings of the defendants. The defendants can crossexamine the
witness. Therefore, has prayed for dismissal of the notice of motion.
4. Heard Advocate for the plaintiff and defendants.
5. Following points arise for my determination and I have
recorded my findings thereon for the reasons to follow:
POINTS FINDINGS
(1) Whether the paras of the evidence
affidavit of P.W.2 Arun Deshmukh
needs to be deleted ? : No.
(2) What order ? : As per final order.
REASONS
Point No.1:
6. The Advocate for the defendants has submitted that the
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P.W.2 Arun Deshmukh is husband of plaintiff and is deposing as a
witness. However, he has travelled beyond the pleadings and taken the
defendant by surprise. The witness is trying to putforth different case.
Therefore such evidence cannot be allowed to come on record. To
buttress his contention the defendants have relied upon decision in case
Harish Layalka and another Versus Dileep Nevatia and others [Suit
No.3598 of 1996 decided by the Hon'ble High Court on 7th April,
2014]. Per contra, the Advocate for the plaintiff has submitted that the
plaintiff’s witness is depositing as per his knowledge. Further, the facts
which are narrated are about the contents in the written statement
which the plaintiff needs to justify. The plaintiff has placed reliance
upon the decision in case of Harkchand Gulabchand Dhaka Versus
Kashinath Narsingh Marathe [LAWS (BOM)2010164 ] to submit
that the objection raised by the plaintiff can be considered at the time of
judgment.
7. The present suit is filed by the plaintiff for the damages
caused due to the defamation committed by the defendants as members
of the society. There is chequered history of litigation between the
parties. The evidence of the plaintiff is already over. The Advocate for
the defendants has submitted that the evidence of the witness is more
than that of the plaintiff herself. However, I find that the said
contention is not proper. This is a suit for damages for the defamation.
Therefore, at this stage the court cannot examine and verify the
contents of the affidavit evidence that whether the same is required or
not. Moreover, I do not find that the evidence is in the nature of
submissions and arguments and not in the nature of evidence.
Therefore, the decision in case of Harakchand Dhaka (supra) will not
help the case of the defendants. It is to be seen that the evidence is
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required to be filed as per the pleadings so that the court time is not
wasted. The defendants can proceed with the crossexamination
keeping in mind the legal provisions that there is no need of cross
examination of P.W.2 Arun Deshmukh on some portion of evidence as it
is beyond the pleadings and not relevant and also can argue about the
same. But, at this stage, the paras as contended by the defendants
cannot be deleted in view of the doubt about its relevancy. The
decision in case of Harakchand Dhaka (supra) cited by the plaintiff
will be more appropriate in the facts and circumstances of this case, that
the objection raised by the defendants can be considered at later stage.
In the circumstances, I answer Point No.1 in negative and proceed to
pass the following order.
ORDER
(i) The Notice of Motion No.821 of 2018 is dismissed.
(ii) Accordingly, notice of motion is disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 13/08/2018
Dictated on: 13/08/2018
Transcribed on: 16/08/2018
Signed on: 16/08/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
18/08/2018 at 11.00 a.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
13/08/2018
Judgment/Order signed by P.O.on 16/08/2018
Judgment/Order uploaded on 18/08/2018
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