Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.1065/2018 in Suit No.5107/2007
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1065 OF 2018
(MHCC010034492018)
IN
S.C.SUIT NO. 5107 OF 2007
(MHCC010077202007)
Devang Champaklal Goradia ]
Adult, Indian Inhabitant ]
604, Homeland Apartments, ]
Lokhandwala Complex, Andheri (West), ]
Mumbai – 600 053. ].. Plaintiff.
V/s.
1a. Administrator General ]
Having address at Maharashtra State ]
Mumbai, 2nd floor, Old Secretariat ]
Building (Annex) M.G. Road, ]
Mumbai400 001. ]
2 Dipak Patel ]
Adult, Non Resident Indian, ]
505, Ishidhi Apartments, ]
5th floor, 10th Khetwadi Back Road, ]
Mumbai 400 004. ]..Defendants.
Advocate Mr. Giriraj for the plaintiff.
Advocate Mr. Shah for defendant no.2.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 24th OCTOBER, 2018
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ORAL ORDER
This Notice of Motion has been taken out by the plaintiff
for seeking permission to lead further evidence in respect of document
at serial no.6 at Exhibit5 by reopening the evidence of the plaintiff.
2 The plaintiff has filed affidavit in support of notice of
motion. It is averred that he has filed the present suit for specific
performance of the agreement and for other consequential reliefs. The
plaintiff has filed affidavit of evidence along with compilation of
documents. The documents filed by the plaintiff were exhibited. He
has filed affidavit of evidence in lieu of examination in chief along with
compilation of documents at Exhibit4 and 5 respectively. The
documents filed by the Court were exhibited. Thereafter, the cross
examination of plaintiff took place on commission.
3 However, the document being Public Notice in Newspaper
at serial no.6 of the compilation of documents was not exhibited for
which the plaintiff had to take necessary steps. On 29.11.2017, when
the matter appeared before the Court, the junior of the advocate on
record made a statement that the crossexamination of the plaintiff had
been completed and he further intimated to the Commissioner to
submit his report along with the evidence. The said junior also filed
evidence closed pursis.
4 The said junior of the advocate on record was not aware
about the facts and status of the matter. Therefore, he was not aware
that the said document was yet to be exhibited for which further
evidence was required to be led by the plaintiff. However, the said
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junior inadvertently and due to miscommunication with the advocate
on record filed evidence closed pursis.
5 It is further averred that as the document being Public
Notice in Newspaper at serial no.6 of the compilation of documents was
not exhibited, it was for the plaintiff to take appropriate steps and to
lead further evidence to prove the said document. The said document is
a vital document in order to prove the plaintiff's case. Therefore, it is
necessary and in the interest of justice that the plaintiff should be
permitted to lead further evidence in respect of the document being
Public Notice in Newspaper at serial no.6.
6 The Court has ample powers to direct any party to lead
evidence at any stage of the suit. The junior of the advocate on record
had without proper instructions filed evidence closed pursis. The
plaintiff cannot be allowed to suffer. No loss will be caused to the
defendant, if this notice of motion is allowed. The defendant always
shall liberty to crossexamine the plaintiff's witness. The advocate on
record came to know about the evidence closed pursis recently in the
month of February 2018. There is no delay for taking out the present
notice of motion. Hence, prayed for allowing notice of motion.
7 Defendant no.2 has filed affidavit in reply and resisted
notice of motion. It is contended that the plaintiff has failed to make
out any case for leading further evidence. By an Order dated
06.09.2017, Mr. Jayant Puranik was appointed as the Court
Commissioner for recording the crossexamination of the plaintiff. On
29.11.2017, the plaintiff's advocate stated that the crossexamination of
the plaintiff was completed and filed evidence closed pursis. The Court
Commissioner in this matter has filed report on 12.01.2018.
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8 Defendant no.2 has denied averments made in the affidavit
in support of notice of motion. It is contended that the plaintiff's
advocate on record was not present in the Court on that day. The said
junior advocate has not intimated the Court about the status of the
matter. The said junior should have got the matter kept back and
should have called upon his senior or should have taken instructions
from his senior and accordingly, should have made the statement before
the Court. On the basis of the statement made by the Junior advocate,
the matter was kept for evidence of the defendants on 12.01.2018 and
the matter was adjourned to 24.01.2018. On 24.01.2018, the affidavit
of evidence as well as compilation of documents were filed by the
defendants before the Court. Thereafter, the matter was adjourned for
admission and denial of all these documents of the defendants. From
29.11.2017 to 19.02.2018, the plaintiff did not take steps for leading
any further evidence in the matter. It was only on 21.02.2018, when
his affidavit of evidence as well as compilation of documents was filed
by him. The plaintiff's advocate made a statement before the Court that
he wanted to lead further evidence in the matter. The plaintiff's
advocate should have taken necessary steps for getting the document
exhibited before filing pursis of closing the evidence of the plaintiff.
Hence, prayed for dismissal of notice of motion with costs.
9 Heard the learned advocate for the plaintiff and learned
advocate for defendant no.2. No doubt, the document of the plaintiff at
serial no.5/6 has remained to be marked as exhibit. Admittedly, cross
examination of the plaintiff has been recorded by the Court
Commissioner and on 29.11.2017, the advocate for the plaintiff has
submitted in respect of completion of crossexamination of the plaintiff.
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No doubt, on that day, the Commissioner has not tendered recorded
evidence, but the plaintiff has filed evidence closed pursis.
10 Further, it appears that thereafter, admittedly on
12.01.2018, the Court Commissioner has tendered recorded evidence of
the plaintiff. Then on 24.01.2018, the defendant has filed evidence
along with compilation of the documents. Now, in this background, the
plaintiff has come before the Court with this notice of motion on
20.02.2018 stating specifically that the documents tendered by him
vide Exh.5 at serial no.6 has remained to be exhibited. The plaintiff has
filed original Public Noticed dated 15.03.2017 along with receipt dated
13.03.2007 at Serial No.6. It is to be noted that the said receipt has
been exhibited as Exh.15, but notice at serial 5/6 has remained to be
exhibited. Now in such circumstances, the plaintiff wants to lead
further evidence at the stage when defendant no.2 has filed his
evidence before the Court.
11 It appears that the plaintiff has stated reason in affidavit
that the junior advocate of advocate on record has inadvertently and
due to miscommunication with the advocate on record filed evidence
closed pursis. It seems that the crossexamination of defendant's witness
has yet not commenced. The document, which the plaintiff wants to
prove has already been filed on record. Therefore, reason mentioned in
affidavit in support of notice of motion is reasonable to accept, with
view to give sufficient opportunity to the plaintiff to prove document, so
as to decide all controversial issues involved in the suit on merits. If the
present notice of motion is allowed, no prejudice would be caused to
the defendants, as the defendants will have an opportunity to conduct
the crossexamination in respect of the said evidence. No doubt, the act
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of the plaintiff i.e. filing this notice of motion after filing the evidence of
the defendants, defendant no.2 leads to prolong the decision of the suit.
Therefore, delay caused is to be compensated in terms of money, while
allowing this notice of motion. Thus, with view of given sufficient
opportunity to the plaintiff to lead evidence in respect of the said
document, which is already before the Court, this notice of motion is to
be allowed, by imposing costs upon the plaintiff. Thus, notice of motion
is to be allowed in the interest of justice. With this, I proceed to pass the
following order:
ORDER
Notice of Motion No.1065 of 2018 is made absolute in
terms of prayer clause (a) and (b) subject to the payment of costs of
Rs.5,000/ (Rupees Five Thousand only) payable by the plaintiff to
defendant no.2 on or before next date.
2 On payment of costs, the plaintiff is hereby permitted to
lead further evidence in respect of document at serial no.Exhibit5/6
only on the next date with directions to tender copy of the said evidence
well in advance to defendant no.2.
3 The defendants are at liberty to conduct the cross
examination of further witness of the plaintiff.
4 Notice of Motion No.1065 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 24/10/2018. City Civil Court,
Gr. Bombay.
Dictated on : 24/10/2018
Transcribed on : 25/10/2018
Signed on : 29/10/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24/10/2018 At 01.10 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
24/10/2018
Judgment/Order signed by P.O. on 29/10/2018
Judgment/Order uploaded on 29/10/2018
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