Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1452 OF 2018
IN
S.C.SUIT NO.6915 OF 2001
Najmuddin Fazlehusain Siamwala (Since deceased)
1(a). Sakina Wd/o.Najmuddin Siamwala,
(b). Oan S/o.Najmuddin Siamwala,
(c). Mohammed S/o. Najmuddin Siamwala,
(d). Mehzabin W/o. Contractor
D/o Najmuddin ... Plaintiffs
Versus
Rajaram Sakharam Ghosalka ... Defendant
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 4th DECEMBER, 2020
Mr.Rajendra Bhandary, ld. adv. for plaintiffs.
Mr.Abdul Rauf Shaikh, ld adv. for defendants.
O R D E R
1. This Notice of Motion is taken out by defendant to
reexamine plaintiffs' witness no.1.
2. Defendant Rajaram Sakharam Ghosalkar has filed his
affidavit in support of notice of motion contending that plaintiff has
filed this false suit against defendant in which defendant has already
filed his written statement. Affidavit of examination in chief of plaintiff
is filed and thereafter advocate for defendant crossexamination of
plaintiff is filed and thereafter advocate for defendant had cross
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examined plaintiffs' witness no.1 on 29/06/2016. After perusing all
the records and proceedings defendant found some ambiguities and
some related portion of crossexamination has not been done on
essential materials which is essential to arrive at a conclusion. Hence,
the defendant has filed this notice of motion. It is contended that
purpose of crossexamination is not deliberate but it is for removal of
ambiguity so that Court will arrive at conclusion. Hence, defendant has
prayed to give him opportunity to reexamine plaintiffs' witness no.1.
According to defendant, no prejudice or injustice will be caused to
plaintiff if the notice of motion allowed. With the help of those
contentions, defendant has prayed to allow the notice of motion.
3. Plaintiff has filed his affidavit of reply and resisted the
notice of motion contending that present notice of motion is taken out
only for delaying the suit. Said allegations made in the affidavit filed by
defendant are vague and the notice of motion is misconceived as there
is nothing in CPC to entertain the alleged reexamination of PW1 or to
recall said witness for alleged reexamination. It is contended that once
oral and documentary evidence is recorded in the subject matter in
issue, no fresh evidence is permitted, otherwise same will amount to fill
up the lacuna which is not permissible under law. After completion of
crossexamination the reexamination is not permissible. Defendant has
not made out any ground under Order18 Rule17A of CPC to permit
him for such reexamination. According to plaintiff, there must be a valid
reason for production of such evidence. As reexamination is not a
mechanical act under CPC. According to plaintiff, it is vaguely alleged
that on perusal of record defendant noticed alleged ambiguities and
therefore reexamination of PW1 is necessary. With the help of those
contentions plaintiff has prayed to dismiss the notice of motion.
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4. Roznama dated 28/10/2020 shows that this Court has
observed that this notice of motion is pending since 2018 thereby this
suit which is filed in the year, 2011 is pending even though 19 years
have passed. Hence, Court has further observed that if defendant will
not argue notice of motion Court will be compelled to dispose off the
notice of motion. Inspite of specific observations of the Court, the
defendant has not argued the notice of motion further. On perusal of
affidavit of evidence of PW1 it is at Exh.4A it is noticed that defendant
has crossexamined plaintiff on 29/06/2016, 03/10/2017, 06/11/2017
and 23/11/2017 and exhaustive crossexamination of PW1 is recorded
by defendant. Actually defendant is not entitled for reexamination of
PW1 because reexamination is to be conducted by plaintiff of his own
witness if any ambiguity is brought by defendant on record in cross
examination of such witness. Defendant who has crossexamined the
PW1 and who has not taken care to crossexamine plaintiff on all
material aspects cannot be permitted to record reexamination of PW1.
As defendant has not argued the matter and as he is not entitled for
reexamination of the plaintiffs' witness PW1, I find that notice of
motion is not maintainable. Hence, I proceed to pass following order.
O R D E R
Notice of Motion No.1452 of 2018 stands dismissed.
Sd/
(K.P.NANDEDKAR)
04/12/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 04/12/2020
Transcribed on : 04/12/2020
Signed by HHJ on : 04/12/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
04/12/2020 4.20PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 04/12/2020
Judgment/order signed by P.O on 04/12/2020
Judgment/order uploaded on 04/12/2020
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