Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum 537-18 in S.C.Suit no.8123-96
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS NO. 537 OF 2018
(CNR no. MHCC010038262018)
IN
S.C. SUIT NO. 8123 OF 1996
(CNR no. MHCC010013641996)
(HIGH COURT SUIT NO.3857 OF 1996)
The Western District Council Of
Maharashtra Of The South India Assemble Of God ]..Plaintiff
Versus
1. Shirly Naresh Rajwani and 2 ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 20th March, 2019.
Mr. Bhandari with Ms. Maya Sarkar, advocates for plaintiff.
Mr. Farhan Dubhash, advocate for defendant nos. 1 and 2.
None for defendant no. 3.
ORDER
1. The plaintiff has taken out this chamber summons seeking
to recall PW2 Dr. Annie Mathai Thomas to lead further evidence
regarding all the documents produced with list (Exh.60).
2. The learned advocate for the plaintiff submitted that during
the cross examination of PW2 Dr. Annie certain questions in relation to
the financial transactions and funding received by the plaintiff were
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2 Ch/sum 537-18 in S.C.Suit no.8123-96
asked by the defendant's advocate. The PW2 Dr. Annie answered that
after verification of the record and correspondence, she would answer
the same. Accordingly, she verified the records and produced the
documents with list (Exh.60). According to him, the said documents
could not have been traced earlier. The said documents are either
signed by the PW2 Dr. Annie or her husband. He further submitted that
the said documents consist correspondence between the plaintiff and
the funding agencies located in Sweden and some account extracts etc.
and few of said documents were already submitted with plaint,
however, the original thereof were not traceable. Thus, in order to
prove these documents which were sought to be produced during the
cross examination, recalling of PW2 Dr. Annie is necessary.
3. On the other hand, the learned advocate for the defendant
nos. 1 and 2 submitted that the plaintiff has already closed its evidence
after examining of PW1 and PW2. According to him, certain questions
were put to the PW2 Dr. Annie during her cross examination regarding
her knowledge about the financial transactions. She was not called
upon to produce the documents. However, on the next day, the plaintiff
produced the documents. Such production of documents and leading
further evidence to prove the same is not permissible. According to him,
the documents are not relevant and the witness is not an author of the
said documents. It is an attempt on the part of the plaintiff to fill up
lacuna.
4. The learned advocate for the defendant nos. 1 and 2 placed
reliance on the ratio laid down by the Hon'ble Supreme Court in the
case of Vadiraj Naggapa Vernekar Vs. Sharad Chand Prabhakar
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3 Ch/sum 537-18 in S.C.Suit no.8123-96
Gogate reported in A.I.R. 2009 Supreme Court 1604 to the effect
that power under Order XVIII Rule 17 of the Code of Civil Procedure
(C.P.C.) recalling the witness for reexamination cannot be invoked in
order to fill up the lacuna in the evidence of witness which has already
been recorded, but to clear any ambiguity that may arise during the
course of his examination such power can be used. In reply, the learned
advocate for the plaintiff submitted that the documents were called
upon in response to the questions put during the cross examination of
the PW2 Dr. Annie and in order to avoid any ambiguity the same should
be taken on record with permission to plaintiff to prove the same.
5. The plaintiff has instituted a suit for restoration of
possession of suit premises under section 6 of the Specific Relief Act. It
is the case of the plaintiff that in furtherance of an agreement for sale of
the suit premises and on payment of Rs.50,00,000/ to defendant no. 3,
the plaintiff was put in possession of the suit premises on 18.08.1996.
However, the defendant nos. 1 and 2 claiming tenancy rights in the suit
premises illegally and forcibly dispossessed the plaintiff in the midnight
of 25.08.1996. It is the case of plaintiff in paragraph nos. 5 to 8 etc. that
the Swedish International Development Agencies (S.I.D.A.) was the
funding company to the plaintiff who from time to time provided funds
to the plaintiff for various purposes including to acquire the suit
premises in Dharavi area in order to run some Charitable and Aid
Centre for poor and needy persons etc.
6. Earlier, the PW2 Dr. Annie filed her affidavit in lieu of
examination in chief (Exh.59) and was cross examined before the
Court. During such cross examination dated 10.11.2017 in paragraph
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4 Ch/sum 537-18 in S.C.Suit no.8123-96
no. 28 certain questions were put to the PW2 Dr. Annie about the
relations inter se the plaintiff and S.I.D.A. to which she replied that only
after going through the record she could state as to what amount paid
in cash by the plaintiff for purchasing the suit property. There upon the
learned Predecessor of this Court recorded the question and answer
when the PW2 Dr. Annie was specifically asked as to what record she
would like to see. She replied that she would verify the books of
accounts of the plaintiff. Thereafter, her reply is recorded as follows, “I
can produce the said books of accounts”. Considering this specific reply,
it appears that the question might have been put to her whether she
would be in position to produce the books of accounts. Similarly, a
question was put to her whether the entire amount Rs.50,00,000/ or
any other amount was asked by the plaintiff to S.I.D.A. to fund. The
PW2 replied that she had to check books of accounts and
correspondence and thereafter, she would be in position to reply the
same. She also stated that the amount fundings by S.I.D.A. were from
Sweden and there are bank transaction pertaining to the same etc.
7. It also appears from the record that the further cross
examination of PW2 Dr. Annie was recorded before the Court
Commissioner and at the fag end thereof on 05.01.2018, PW2 produced
the compilation of documents and the Commissioner took the same on
record. The learned advocate for the defendant nos. 1 and 2 though
objected for such production did reserve his right, in case the Court
allows the production of documents, for further cross examination of
the witness in that behalf.
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5 Ch/sum 537-18 in S.C.Suit no.8123-96
8. Considering, the aforesaid facts and circumstances, it
appears that the documents with list (Exh.60) were produced in
response to the questions put by the learned advocate for the
defendants during the cross examination as to how the amount of
consideration was paid by the plaintiff to defendant no. 3. Under such
circumstances, there will not be any filling of the lacuna. The evidence
on record should be free from ambiguity in order to decide the matter
on merits and therefore, the chamber summons deserves to be allowed.
The prejudice which may be caused to the defendant nos. 1 and 2 by
belated production of such documents can be compensated in terms of
costs and further allowing the defendants to cross examine the PW2 Dr.
Annie. Therefore, the following order is passed :
ORDER
1. The Chamber summons no. 537 of 2018 is made absolute in
terms of prayer clause (a) subject to payment of costs of
Rs.2,000/ to the defendant nos. 1 and 2 or to be deposited the
same in the Court for that purpose within a period of two weeks
from today.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 20.03.2019 City Civil Court, Mumbai.
Dictated on : 20.03.2019
Transcribed on : 20.03.2019
Checked by HHJ on : 22.03.2019
Signed by HHJ on : 22.03.2019
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6 Ch/sum 537-18 in S.C.Suit no.8123-96
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 22.03.2019 at 3.25 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
20/03/2019
JUDGMENT/ORDER signed by
P.O. on
22/03/2019
JUDGMENT/ORDER uploaded
on
22/03/2019
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