Order 1

Order Details: Notice of Motion
Pdf Text: NM 1028/2018 SUIT 6842/1997 1
CNR.NO.MHCC010033622018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1028 OF 2018
IN
SUIT NO.6842 OF 1997
Joshuwa Nathan Nagavkar .. .. Plaintiff
Versus
Smt.Hanna Rahamim Charikar ...Defendant
Advocate Shri.Madkaikar for plaintiff
Advocate Shri.Kazi for Defendant.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad Hoc Asstt. Judge
C.R. No. : 32
Dated :3rd August 2018
ORDER
1. Plaintiff taken out this motion for correction in the order dated
10/11/2017 with a prayer (a) and (b) in the motion.
2. Perused the reply of the defendant. If plaintiff has any grudge
against the order dated 10/11/2017 he has to file an appeal or revision
against the said order, as regards to the documents Sr.No.2 to 5 cannot
be marked at exhibit number as the defendant is not the author of the
said documents and same are not coming from proper custody. It is
denied by the defendant that this court inadvertently did not consider
the order dated 19/08/2016 passed in the motion allowing the plaintiff
to lead secondary evidence to prove Xerox copies. Apparently, there is
no mistake,error or omission in the order dated 10/11/2017 therefore,
notice of motion be dismissed with costs.
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NM 1028/2018 SUIT 6842/1997 2
3. Heard advocate Shri.Madkaikar for plaintiff and advocate
Shri.Kazi for Defendant.
4. Plaintiff had taken motion No.1935/2016 to lead secondary
evidence of the documents at Sr.No.2 to 5, that was allowed by order
dated 19/08/2016. I have perused the document at Sr.No.2 to 5 vide
list Exh.4. Plaintiff had issued a notice dated 17/02/2016 to the
defendant to produce the documents at Sr.No.2 to 5 (page 3 to 15).
That notice was replied by defendant through advocate Shri.M.A.Kazi
on 24/02/2016 with the statement that documents demanded by the
plaintiff are beyond the scope of the pleading and not reflected therein.
Defendant also filed the reply to the motion No.1935/2016. In para. 6
of the said reply, defendant made a statement that she is not in a
possession of the documents and at present documents are not
traceable.
5. I have perused the documents at Sr.No.2 to 5 page No.3 to 15.
The name of he defendant is recorded as a transferee in the year 1978,
in the memorandum of transfer of Dimple Cooperative Housing Society
Ltd. As plaintiff wants to give secondary evidence about the contents of
the documents he had called upon the defendant to produce it by
issuing notice dated 17/02/2016 but as defendant failed to produce
the documents by making a statement that documents are not
traceable , in such eventuality, contents of the documents would be
admissible. The contention of defendant that there is no pleading about
the said documents and therefore, not concern that aspect can be
brought on record by the defendant by cross examining the plaintiff.
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NM 1028/2018 SUIT 6842/1997 3
6. The documents at Sr.No.6(page 16 to 18) is the letter of the
plaintiffs advocate addressed to the defendant along with postal and
acknowledgment receipt and document at Sr.No.7 (page 19 to 20) is
the advocate's letter of plaintiff with postal and acknowledgment receipt
addressed to Dimple Cooperative Housing Society. Therefore, these
documents are required to be marked at exhibit numbers. The
defendant advocate is at liberty to cross examine about the contents in
the documents at Sr.No.6 & 7.
7. At this stage, the only question before the court is that whether
the documents as mentioned in the motion can be marked exhibit
numbers. Under section 152 of the Code of Civil Procedure court can
amend the order under its inherent power that order where there has
been a clerical mistake arising from an accidental slip and act of the
court will not prejudice a party and as the opportunity to cross examine
is available for defendant. Considering this aspect, I pass following
order.
ORDER
1. Notice of motion No1028/2018is made absolute.
2. The documents at Sr.No.2 to 5(page No.3 to 15) and
Sr.No.6 to 7(page No.16 to 20) be marked exhibit numbers
serially.
3. Plaintiff is at liberty to cross examine about the documents
at Sr.No.2 to 5 and 6 to 7.
Date : 03/08/2018
(Pushpa N. Rao)
Ad hoc Dist.Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer: 03/08/2018
Signed by HHJ on : 03/08/2018
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NM 1028/2018 SUIT 6842/1997 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/08/2018 at ( 11.35p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room
No.)
HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
03/08/2018
JUDGMENT/ORDER signed by P.O.on 03/08/2018
JUDGMENT/ ORDER uploaded on 28/08/2018
.
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