Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1233 OF 2019
IN
SUIT NO. 4271 OF 2011
H.D.F.C Limited ...Plaintiff
Versus
1. Daver Hera Minoo & Anr. ..Defendants
Appearance:
Advocate M/s. Mahesh Menon & Co. for the Plaintiff.
Advocate Denzil D'Mello for the Defendant No.2
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 4th September, 2021
ORDER
1. This N/M has been taken out by the defendant No.2,
seeking leave to file additional written statement. Because according to
her, in earlier written statement, she could not put all the facts and
pleadings properly as no inspection of the documents was given by the
plaintiff to her. After filing of written statement, when she took the
inspection of all the documents of the plaintiff, she realized certain
facts, which according to her, are necessary to be brought in written
statement. Therefore, the present N/M to accept her additional written
statement on record.
2. The N/M has been objected by the plaintiff on the premise
that the cause shown that to file written statement is improper. The
defendant is prolonging hearing of the suit under the pretext of putting
certain facts after inspection of the documents of the plaintiff. The
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defendant No.2 is intending to make out a new case. The plaintiff
asked to dismiss the N/M.
3. Heard Advocate for the defendant No.2. Neither the
plaintiff, nor its advocate turned up to advance arguments. Perused
N/M, reply and record. On its basis following points rise for the
determination and the findings to each of them for the reasons recorded
as below.
Sr.No. POINTS FINDINGS
1. Whether the defendant No.2 is entitled to
file written statement on the cause of
noticing certain facts after inspection of
the documents of plaintiff ?
No.
2. What order N/M is disallowed.
Reasons:
As to Point No. 1 :
4. The written statement of the defendant No.2 has been
taken on record. According to her, the written statement does not
contain the facts noticed after the inspection of the documents of the
plaintiff. Before filing of written statement, the plaintiff was asked to
give the inspection of its documents. But as no inspection was given,
without inspecting the documents, the written statement was filed. But
subsequent to filing of written statement, when the plaintiff gave the
inspection of its documents, the defendant No.2 noticed certain new
facts of which answer is required to be given in the written statement.
The reply of defendant No.2 in respect of those facts should come on
record.
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5. The Code of Civil Procedure does not permit filing of any
additional written statement by the defendant. It is permissible only
when an amendment has been taken place in the pleadings of the
plaint. In that contingency, defendant may file additional written
statement to the amended plaint. The additional written statement is
based on amendment in the plaint. The defendant No.2 intending to
bring certain facts on record, which have been noticed during the
inspection of documents of the plaintiff. It is a subsequent event. It is
settled legal position that if any new facts noticed by the parties, by way
of subsequent event, it may be conveyed to the Court with the aid of
Order 6 Rule 17 of CPC. Therefore, the additional written statement
cannot be taken on record. The remedy available to the defendant No.2
is to take recourse to Order 6 Rule 17 of the CPC. Hence, answering the
point No.1 in the negative, following order is passed:
ORDER
Notice of Motion No.1233 of 2019 is disallowed and
accordingly disposed off.
(H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Date: 04.09.2021
Order Dictated on : 04.09.2021
Transcribed on : 15.09.2021
Signed on : 20.09.2021
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4 NM1233/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 21.09.2021 5.45 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
04.09.2021
JUDGMENT /ORDER signed by P.O. on 20.09.2021
JUDGMENT /ORDER uploaded on 21.09.2021
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