Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-1528-18 Suit.4269-08
CNR NO. MHCC01 0047752018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1528 OF 2018
IN
S.C. SUIT NO.4269 OF 2008
(H.C. SUIT NO. 2175 OF 2008)
The Bengal Mills Stores Supply Co. ] .. Plaintiff.
Versus
Kalpataru Power Transmission Limited ] .. Defendant.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 14th June, 2018.
Adv. Nitesh Bhutekar for plaintiff.
Adv. Sanjay Udesi & Co. for the defendant.
ORDER
The plaintiff has taken out this notice of motion for
recalling the order dated 23/08/2017 to the extent of marking of
Exhibits 37, 38 and 39 and to deexhibit the same and that the plaintiff
be permitted to crossexamine the D.W.1 without referring to the said
exhibits.
2. The plaintiff has submitted that on 28/07/2017 instead of
exhibiting the documents of the plaintiff, court exhibited documents of
the defendants when there was no evidence of the defendant filed and
-- 1 of 8 --
:2: NM-1528-18 Suit.4269-08
also when the stage was for exhibiting the documents of the plaintiff. It
is stated that the plaintiff has informed the said fact to the court and the
court has recorded that the plaintiff's documents were not exhibited. It
is stated that the documents are exhibited without any direct evidence
and therefore it is submitted that said documents exhibited documents
be ignored.
3. The defendant filed its reply denying therein that the
documents were not exhibited properly by the court. It is stated that in
the roznama dated 23/08/2017 it is recorded that the objection of the
plaintiff is noted and that the plaintiff may crossexamine the
defendants on the said documents. Therefore, the contention raised by
the plaintiff belatedly, cannot be considered by this court. Therefore,
prayed for dismissal of the notice of motion.
4. The plaintiff filed rejoinder denying therein the contents of
the reply.
5. Heard Advocate for the plaintiff and defendant.
6. In view of rival pleadings of the parties, following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
(1) Whether the documents marked as
Exhibit37, 38 & 39 needs to be
deexhibited and defendants needs
to be granted liberty to ignore the said
-- 2 of 8 --
:3: NM-1528-18 Suit.4269-08
documents during the crossexamination ? : No.
(2) What order ? : As per final order.
REASONS
Point Nos.1:
7. The Advocate for the plaintiff has vehemently submitted
that the documents were exhibited when there was no evidence filed by
the defendant and the stage was for exhibiting documents of the
plaintiff. She has taken me through the roznama. She further argued
that as the documents are not properly exhibited, the same cannot be
considered
8. Per contra, the Advocate for the defendants has submitted
that the documents are properly exhibited. Plaintiff had earlier objected
and she was called upon to crossexamine the witness on said
documents.
9. The plaintiff has relied upon the decision in case of Jyoti
Vasantrao Butle Versus Varsha Aniruddha Bansod [2009 (Supp)
Bom.C.R.1057], in the said case it is held that when the document is
tendered in evidence, the trial court has to decide the objection
regarding admissibility of documents and thereafter proceed to record
further evidence. In the case of Sunil Tukaram Bharadkar Versus
Santosh Gopichand Rane [2006 (5) Bom.C.R. 237], it is held that
the documents has to be exhibited in accordance with the provisions of
law and if the document is not exhibited in such a manner, exhibition
of such documents cannot be an exhibition of documents in accordance
with the provisions of law. Both these judgments cited by the plaintiff
were considered by the Full Bench of the Hon'ble Bombay High Court.
In Hemendra Rasiklal Ghia Versus Subodh Mody [2008 (6) Mh.L.J.
-- 3 of 8 --
:4: NM-1528-18 Suit.4269-08
886], wherein the Hon'ble High Court in Para87 while considering
when the objection to the exhibiting of documents is to be considered,
held that:
“87.... We may make it clear that omission to object to a document,
which in itself is inadmissible in evidence, would not constitute such
document in evidence. It is also duty of the Court to exclude all
irrelevant evidence even if no objection is taken to its admissibility
by the parties. The question of relevancy of the document being a
question of law can be raised and decided at any stage of the
proceeding.”
It is further held in Para89 that:
“89. The different cases will have different facts. Each case
must be dealt with on its own facts. No straitjacket formula can be
evolved. The Civil Procedure Code has been amended from time to
time in order to meet the changing situations. The Courts trying the
suit or proceedings involving peculiar facts do have a discretion to
work out its own procedure and determine the stage of deciding the
admissibility of the documents for the reasons to be recorded, if it
advances the cause of justice without causing prejudice to the rights
of either of the parties. The discretion should not be used fancifully.
It is quite possible that sometimes when party fails to substantiate
the allegations, he may resort to dilatory tactics to harass the
opponent by filing irrelevant and frivolous documents to prolong the
continuance of the case. This should be checked by exercising power
available with the Court. As already said, procedure is always
evolved to serve the ends of justice and to avoid miscarriage of
justice.”
-- 4 of 8 --
:5: NM-1528-18 Suit.4269-08
10. In the present case, the roznama does reflect that the
documents of the defendant were exhibited on 28/07/2017 when the
evidence of the defendant was not filed. However, the plaintiff has
recorded its admission and denial on the documents of the defendants
and the same were considered. On the very next day the plaintiff has
pointed out that the documents of the defendants were not properly
exhibited. At that time, the court has informed the Advocate for the
plaintiff that the objection was noted and she may crossexamine the
defendant on said documents. Therefore, in view of decision in case of
Hemendra Rasiklal Ghia (supra), wherein the Hon'ble High Court has
held that :
“92......the objection to the admissibility or relevancy of
evidence contained in the affidavit of evidence filed under Order
XVIII, Rule4 of Civil Procedure Code can be admitted at any stage
reserving its resolution until final judgment in the case as held in
Ameer Trading Corpn Ltd/ V/s. Shapoorji Data Processing
Ltd.”
11. In the present case, the plaintiff's objection is noted by the
court to be considered later on. Merely exhibiting of documents will
not go to show that defendants case is proved. Plaintiff has opportunity
to challenge its contents in crossexamination In the affidavits, in
support of the notice of motion the defendant has stated that the
documents of the defendants are exhibited without having direct
evidence to that effect and therefore it is necessary to mark those
documents for the identification and the liberty be granted to plaintiff
to ignore and not to crossexamine D.W.1 without any adverse inference
-- 5 of 8 --
:6: NM-1528-18 Suit.4269-08
on the said exhibits. However, if the plaintiff has taken this objection at
the earliest then the facts would have been different. But, now the
defendant has adduced his evidence and filed affidavit of evidence vide
Exh.6, in which he has deposed about these documents. Hence, the
contention of the plaintiff that there is no direct evidence cannot be
considered at this stage. Moreover, if the documents are ignored then
definitely prejudice would be caused to the defendants. The interest of
the plaintiff is protected as it has opportunity of crossexamination.
12. In view of the facts of this case, no doubt that documents
were exhibited when there was no evidence of the defendants on
record, but now there is evidence of the defendant. Further, the
documents filed by the defendant cannot be said to be inadmissible in
evidence. Considering the peculiar facts and circumstances of the case,
I find that it would be just and proper that the plaintiff to proceeds with
the crossexamination and can always argue about the objection on
documents at the time of final arguments. Hence, I answer Point No.1
in negative and proceed to pass the following order.
ORDER
The Notice of Motion No.1528 of 2018 is dismissed, accordingly
disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 14/06/2018
Dictated on: 14/06/2018
Transcribed on: 15/06/2018
Signed on: 18/06/2018
-- 6 of 8 --
:7: NM-1528-18 Suit.4269-08
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
18/06/2018 at 11.00 a.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
14/06/2018
Judgment/Order signed by P.O.on 18/06/2018
Judgment/Order uploaded on 18/06/2018
-- 7 of 8 --
:8: NM-1528-18 Suit.4269-08
-- 8 of 8 --