Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.140718
CNR No. MHCC010044402018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1407 OF 2018
IN
SUIT NO.140 OF 1988
(HIGH COURT SUIT NO.1951 OF 1988)
Khimji H. Bharapuria & Ors. ...Plaintiffs.
V/s.
Pandurang Gajanan Naik & Ors. ...Defendants.
Appearances:
Ld. Adv Ashok Jain for plaintiffs.
Ld. Adv Nitin Shukla for defendant nos 1 and 4.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 05th MARCH, 2019.
ORDER
1. This is notice of motion taken by plaintiff for allowing him to
produce additional evidence and documents.
2. Plaintiff's contention is that he filed affidavit on 07.12.2017
alongwith documents. After filing of affidavit of evidence, he learnt
that defendant no.1 jointly with one Damodar Sakharam Bhoir, has
mortgaged the suit property with Baseein Catholic Cooperative Bank
Limited, Papadi. Therefore, he has taken search in the offices of Sub
Registrar of Assurances, Mumbai, Vasai and Virar and he found that
Deed of Mortgage dated 25.10.1972 registered at serial no.579 of 1972,
the defendant no.1 jointly with one Damodar Sakharam Bhoir, being
the coowners of the property. He received certified copy on
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10.02.2017 so, his contention is that his additional evidence alongwith
documents be taken on record. If his additional evidence is not taken
on record, it will cause loss and injury to the plaintiff.
3. Defendant no.1 filed say and raised objection and contending that
notice of motion is not maintainable and same is taken out with a view
to delay the hearing of the suit. His contention is that he has taken out
application under Order VII Rule 11 of the Code of the Civil Procedure
for rejection of plaint. He denied that the plaintiff learnt that registered
Mortgage Deed of suit property with Bassein Catholic Cooperative Bank
Ltd., he is not aware about search taken by Ganesh Gawade. His
contention is that according to plaintiff, his own admission search clerk
obtained the copy of mortgaged deed on 10.02.2017, whereas affidavit
of examination in chief alongwith documents filed on 07.12.2017 i.e.,
almost after 10 months after the receipt of the search report and
Mortgaged Deed so, he was having documents in possession prior to
filing of affidavit of evidence therefore, he prayed for dismissal of notice
of motion.
4. Plaintiff filed sur rejoinder. His contention is that affidavit of
evidence of PW1 was affirmed on 17.12.2016 and not on 07.12.2017
so, certified copies of Mortgaged Deed received on 10.02.2017 after
filing of affidavit of evidence and compilation of documents.
5. I have heard Advocate for both the parties.
6. Advocate for plaintiff submitted that affidavit of evidence Exh.5
taken on record on 17.12.2016 and on the same day it was affirmed. It
further submitted that documents of Mortgaged Deed was received after
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filing of affidavit so, he may be allowed to produce additional affidavit
and additional documents. He further submitted that in appeal under
Order 41 Rule 27 of the Code of Civil Procedure additional evidence is
allowed to produce on record so, the plaintiff be allowed to produce
additional evidence of record for that purpose he relied upon Y. P.
Sudhanva Reddy and Ors., V/s. Chairman and Managing Director,
AIR 2018 SC 2176.
7. Advocate for defendant submitted that the plaintiff himself in
affidavit in support of notice of motion mentioned that he filed affidavit
on 07.12.2017 so, he cannot say affidavit was sworn and filed on
17.12.2016. He submitted that there is no sufficient reason to allow the
plaintiff to produce additional affidavit and additional documents. He
submitted that authorities relied by Advocate for plaintiff is not
applicable in the present case. He submitted that as there is provision
under 41 Rule 27 of the Code of Civil Procedure for allowing additional
evidence in appeal stage on some grounds therefore, authorities relied
by Advocate for plaintiff are not applicable in the present case.
8. I find that after perusal of affidavit of evidence and roznama, it
shows that affidavit was sworn on 17.12.2016 and filed on the same
day in the Court so, it may be stated in affidavit in notice of motion,
date of affidavit incorrectly but later on in rejoinder he corrected the
date. The plaintiff received additional documents after filing his
affidavit. The plaintiff has not yet closed his evidence. Plaintiff's
documents are not exhibited. In this circumstance, if plaintiff is not
allowed to file additional evidence and additional documents, it will
certainly cause loss to the plaintiff. If additional evidence is allowed, it
will not cause loss to the defendant, defendant has opportunity to say
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about the documents. I also find that the suit is in respect of immovable
property. In this circumstance, it is necessary to allow the plaintiff to
produce additional affidavit and additional documents. With this, I
proceed to pass the following order:
O R D E R
1. Notice of Motion No.1407 of 2018 is allowed.
2. Plaintiff is allowed to file additional affidavit of evidence and
additional documents.
3. Notice of Motion No.1407 of 2018 stands disposed of accordingly.
( KALPANA S. HORE )
Judge,
Dated : 05/03/2019 City Civil Court, Gr. Mumbai
Dictated on : 05/03/2019
Transcribed on : 05/03/2019
Signed on : 05/03/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
06.03.2019 2.36 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
05.03.2019
JUDGEMENT /ORDER signed by
P.O. on
05.03.2019
JUDGEMENT /ORDER uploaded
on
06.03.2019
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