Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.1090 of 2020 in LC Suit No.1203 of 2009
CNR: MHCC010030972020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.1090 OF 2020
IN
L.C.SUIT NO.1203 OF 2009
1 Mr. Jayesh M. Vajani & Ors. .. Plaintiffs
V/s.
Shankar Krishna Shetty(Deleted)
Smt. Smriti Sachin Shetty & Ors. .. Defendants
Appearance:
Adv. Saraogi for plaintiffs.
Adv. Murti for defendant Nos. 1 (a), 5 and 6.
Adv Smt. Kumud Soraan for defendant /MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 01/08/2022
ORDER
1 This Notice of Motion is taken out by the plaintiff No.1
for appointment of proper person to act as a Commissioner to
attend the suit premises and submit the report in respect of factual
position inside the premises. Further, he prayed for recall of
witness on behalf of defendants who deposed on dt.17/02/2020
for further cross examination.
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2 N.M.No.1090 of 2020 in LC Suit No.1203 of 2009
2 The Notice of Motion is strongly opposed by defendant
No.5 as well as the defendant Corporation.
3 Heard Ld. respective advocates on record and perused
the record.
4 As it transpires from the Notice of Motion , the plaintiff
No.1 made submission that the witness i.e. defendant No.5 has
been cross examined on dt.17/2/2020 and in the cross
examination, the question was specifically put regarding internal
partition made by the defendant to which she categorically denied.
The plaintiffs have managed to get photographs from inside
portion of suit premises and wanted to prove the same. Hence, for
said purpose, it is necessary to appoint Court Commissioner to
attend the premises and submit the factual position report.
Thereafter, the witness of defendant No.5 may be recalled for
further cross examination. It is said that no prejudice would be
caused to any party on the other hand, if the application is refused,
the plaintiffs will suffer great harm, injury and loss. Hence, Notice
of Motion may be allowed.
5 The defendant No.5 replied that this Notice of Motion
stating that it is nothing but an abuse of process of law. The
plaintiffs have already cross examined her extensively on
dt.17/02/2020 and then it was closed. The plaintiffs had already
taken out similar application for appointment of Court
Commissioner and thereafter, the Court Commissioner submitted
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3 N.M.No.1090 of 2020 in LC Suit No.1203 of 2009
his report. Now after closure of cross examination, the plaintiffs
are seeking to gather information with the help of this Court.
They ought not to be permitted as the same would amount to
fishing inquiry and also impermissible under law. There is no
necessity to recall the witness as the point which now plaintiffs
want to prove is not a part of pleadings averred in the suit plaint.
Hence, Notice of Motion may be dismissed with costs.
6 I have gone through the entire record of the suit. It
transpires that the matter is very old of the year 2009. The
defendant No.5 has been cross examined extensively by the
plaintiff on dt.17/2/2020. The questions now put by the
plaintiffs' advocate in the Notice of Motion relates to the evidence
in the nature of photographs which could have been filed by the
plaintiff at the time of recording their evidence. They were not
prevented to bring the factual position on record. Secondly, it
transpires from the record that in the suit plaint, the plaintiffs have
averred that defendant No.5 is trying to make material alterations
and additions in the suit premises and they are about to change
the structure of premises without getting permission from
competent authority. It is nowhere averred specifically that the
defendant No.5 has erected internal partition in the suit premises.
As such, it is rightly pointed out by the defendant No.5 that the
plaintiffs cannot be permitted to tender evidence on record which
is not the part of their own pleadings.
7 Secondly, so far as the appointment of a person to be a
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4 N.M.No.1090 of 2020 in LC Suit No.1203 of 2009
Commissioner for visiting the suit premises to get factual position
is concerned, it is necessary to point out that the plaintiffs
themselves have brought the suit seeking mandatory relief against
the defendant Corporation directing defendant No.5 and others
not to erect unauthorised structure in the suit site. In said suit, it
is the duty of plaintiffs to prove that the defendant No.5 and
others are making construction unauthorisedly. Said evidence is to
be brought on record independently by the plaintiffs and for
collecting said evidence, plaintiffs can not take assistance of this
Court. The plaintiffs themselves have submitted in the Notice of
Motion that the defendant No.5 has declined in the cross
examination that internal partition has been made by them. By
way of Court Commissioner and recalling of witness, the plaintiffs
want to add more details with the help of Court to disprove the
evidence given by defendant No.5. The same can not be done
under the provisions of law. The plaintiffs as well as defendants
are having equal right and opportunity to prove their pleadings on
merit. The Court Commissioner can be appointed for elucidating
facts and not for collecting evidence for any party. Moreso,
defendant No.5 has been minutely cross examined by the plaintiffs
and there is no justified and substantial as well as satisfactory
ground given by the plaintiffs for recalling of said witness.
8 Hence, in view of aforesaid discussion, I hold that there
is no merit in the Notice of Motion taken out by the plaintiffs and
same is liable to be dismissed. Hence, following order is passed.
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5 N.M.No.1090 of 2020 in LC Suit No.1203 of 2009
ORDER
1 Notice of Motion No.1090 of 2020 is dismissed.
2 Notice of Motion is disposed off.
Date:01/08/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :01/08/2022.
Typed on :01/08/2022.
Signed on :02/08/2022.
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6 N.M.No.1090 of 2020 in LC Suit No.1203 of 2009
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
03/08/2022. 02.50 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
01/08/2022.
JUDGMENT/ORDER signed by
P.O.on
02/08/2022.
JUDGMENT/ORDER uploaded on 03/08/2022.
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