Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1249/19 in Suit No. 9465/93. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1249 OF 2019
(CNR NO. MHCC010032282019)
IN
SUIT NO. 9465 OF 1993
(CNR NO. MHCC010106712012)
Devilal Kaniram Singhvi ...Plaintiff
Versus
Bothmal Kaniram Singhvi and another ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 21st AUGUST, 2019.
Mr. Sachin Kadam, Advocate for Plaintiff.
Mr. R.V.Singhvi, Advocate for Defendant No.1.
ORAL ORDER
This is a motion taken out by defendant no.1 to initiate
action against plaintiff and four witnesses under Section 191, 193, 209,
195 r/w 211 of IPC. The names of witnesses are (1) Ganeshlal Dhakad,
(2) Kundanmal Jain, (3) Fatelal Parmar and (4) Madanlal Jain.
2. Perused reply filed by plaintiff.
3. Ld. Advocate R.V.Singhvi for defendant no.1 submits that if
there is any perjury during deposition by the witnesses, in view of
Section 340 of Cr.P.C. it is necessary to initiate the action against
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N/m No. 1249/19 in Suit No. 9465/93. 2 Order.
plaintiff and witnesses. In affidavit in support to the notice of motion
various instances are enumerated by the defendant no.1, more
specifically to compare the testimony of witnesses namely Fatelal
Parmar, Madan Jain, Parvati Malvia, Labhchand Jain, Ganeshlal
Dhakad, Kundanmal Jain, Hukmichand Mehta etc.
4. Ld. Advocate Singhvi requested to peruse testimony of one
witness in comparison with another witnesses that how the documents
were signed i.e. either at Borivli or at Fort, in respect of Shop No.6 or
Shop No.1, whether Partnership Deed was signed in June 1989,
whether it was signed by one person or both, whether it was signed by
all panchas etc. Plaintiff came with a case of as of the partner, however,
it is the case of defendant no.1 that it was a sole proprietor.
5. Advocate Singhvi continued that PW 1 admitted at one
place that he had active participation in business of jewellary, at
another instance he admits that he was running a xerox shop at Fort;
however he admits that he was running a cutlery shop at Fort. It is
requested to compare the testimony of PW 1 with witness Fatelal, who
narrates that Devilal had no business.
6. Advocate Singhvi continued to compare issue relating to
payment of rent and to compare the instances of whether rent paid by
him alone or it was paid from the firm. In short, in view of comparison
of different statement of witnesses, he tried to convince that the
witnesses came with a false story and plaintiff has fabricated the
evidence. It is requested to initiate the action in view of Section 340 of
Cr.P.C. r/w 195 of IPC. Ld. Advocate Singhvi for defendant relied over
various rulings of the Hon'ble High Court and Supreme Court,
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N/m No. 1249/19 in Suit No. 9465/93. 3 Order.
undoubtedly it is clear that the application filed under Section 340 of
Cr.P.C. is to be decided preferentially and it cannot be kept pending till
disposal of the suit.
7. Ld. Advocate Sachin Kadam for plaintiff submits that there
is no case of defendant no.1 that upon production of the documents
before the Court, it has caused perjury, material discarded from the
documents or change etc. It is requested to note that the ld. Advocate
appearing for defendant no.1 is a practising lawyer, who is son of
defendant no.1. He is member of the family who knows all details in
respect of transaction between plaintiff and defendant, status of
witnesses and business relations between the parties etc. In such a
situation, there would be no chance to fabricate any document by either
side. Ld. Advocate Kadam requested to rely on a caselaw which has
been submitted by ld. Advocate for defendant no.1 i.e. Iqbal Singh
Marwah V/s. Meenakshi Marwah Criminal Appeal No. 402/2005
decided on 11/03/2005. It is requested to reject the motion.
REASONS FOR THE ORDER
8. Section 340 of Cr.P.C. comes under Chapter 26 of Cr.P.C.
titled as “Provisions As To Offences Affecting The Administration Of
Justice”. The title in itself suggests that it empowers the Court to
initiate suomoto action if something wrong occur in the administration
of justice.
9. The comparative table is enumerated by ld. Advocate for
defendant no.1 in respect of testimony of various witnesses, it shows
two conclusion by different two witnesses regarding one fact. It may be
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N/m No. 1249/19 in Suit No. 9465/93. 4 Order.
good point during arguments at the time of appreciation of the
evidence. The contradiction between the testimony of different
witnesses will affect on reliability and admissibility of the evidence.
This is not a stage of marshalling of the evidence.
10. This is a suit for partition and share claimed in partnership
firm. The suit is 26 years old. In view of pleadings of both sides,
parties have different business at various places. It would be the
material evidence and conclusion to be drawn after appreciation that
whether it was a partnership or it was a sole proprietary firm as alleged
by defendant no.1. It is to note that issues vide Exh.5 are framed by
this Court on 04/08/2015. Both sides have closed their evidence and
suit was posted for final arguments.
11. In Iqbal Singh Marwah V/s. Meenakshi Marwah (supra)
the scope of enquiry under Section 340 of Cr.P.C. is discussed. In para
25 and 26 it is observed that the action under Section 195 shall be
initiated after the document is produced before the Court. Para no.25
and 26 are reproduced as ready reference.
“25. In view of the discussion made above, we are of
the opinion that Sachida Nand Singh has been
correctly decided and the view taken therein is the
correct view. Section 195(1)(b)(ii) Cr.P.C. would be
attracted only when the offences enumerated in the
said provision have been committed with respect to a
document after it has been produced or given in
evidence in a proceeding in any Court i.e. during the
time when the document was in custodia legis.”
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N/m No. 1249/19 in Suit No. 9465/93. 5 Order.
“26. In the present case, the will has been produced in
the Court subsequently. It is nobody's case that any
offence as enumerated in Section 195(b)(ii) was
committed in respect to the said will after it had been
produced or filed in the Court of District Judge.
Therefore, the bar created by Section 195(1)(b)(ii)
Cr.P.C. would not come into play and there is no
embargo on the power of the Court to take
cognizance of the offence on the basis of the
complaint filed by the respondents. The view taken
by the learned Additional Sessions Judge and the
High Court is perfectly correct and calls for no
interference.”
12. As discussed above, there is difference between
contradiction and false evidence.
13. As observed in Ashok Aggarwal V/s. Union Of India 2014
CRI. L. J. 1213 (Supreme Court) it is necessary to conduct preliminary
enquiry before initiating action under Section 340 of Cr.P.C. The
witnesses are eyes and ears of the Court. Admittedly, no witness appear
before the Court for their own benefit. The fact that photogenic
memory of any witness is not expected. The evidence require to be
appreciated from the criteria or logic of the prudent man and not in the
capacity of extra ordinary personality. All the instances as enumerated
by defendant no.1 in evidence affidavit can be referred by him to show
reliability and admissibility of the evidence.
14. The suit is 27 years old and waiting for final arguments. It
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N/m No. 1249/19 in Suit No. 9465/93. 6 Order.
prima facie indicate that application is moved with intent to drag over
the Court and to create hurdle in final disposal. Motion is devoid of
merit. Resultantly, it deserves to be dismissed. Hence the order :
ORDER
1. Notice of Motion No. 1249/2019 stands dismissed.
2. N/m No. 1249/19 is disposed off accordingly.
3. Suit being 26 years old, parties may insist for expedite
hearing.
(Ld. Advocate Singhvi for defendant no.1 requested for
longer date as he intends to challenge the aforesaid order.
Hence next date 05/10/2019 is given.)
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 21/08/2019. Mumbai.
1. Dictated on : 21/08/2019.
2. Transcribed on : 22/08/2019.
3. Signed on : 26/08/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 1249/19 in Suit No. 9465/93. 7 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26/08/2019. 4.59 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 21/08/2019.
Judgment/Order signed by P.O. on 26/08/2019.
Judgment/Order uploaded on 26/08/2019.
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