Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1795/19 in Suit No. 5497/06. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1795 OF 2019
(CNR NO. MHCC01-005098-2019)
IN
LONG CAUSE SUIT NO. 5497 OF 2006
(CNR NO. MHCC01-008409-2006)
Shri Janardhan Atmaram Rawool ...Plaintif
Versus
Shri Ramesh Shah and others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 10th FEBRUARY, 2020.
Mr. Rajendra K. Yadav, Advocate for Plaintif.
None for Defendant Nos.1 to 4.
Mrs. Chavan, Advocate for Defendant No.5 / MCGM.
Mr. Mangale, Advocate for Defendant No.6.
ORDER
This is a motion taken out by plaintif for permission
to lead additional evidence, more specifcally plaintif be
allowed to re-enter into witness box to prove the documents
submitted by him vide list Exh.83 dated 09/02/2018 and to
prove the documents vide Exh.94 submitted on 15/12/2018.
2. Perused reply submitted by defendant no.6.
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N/m No. 1795/19 in Suit No. 5497/06. 2 Order.
3. Ld. Advocate Rajendra Yadav for plaintif submits
that documents attached with list vide Exh.83 are marked as
Exh.84 to 89. The documents submitted with list vide Exh.94
i.e. sr.no.1 and 2 are letters and sr.no.3 and 4 are certifed
copy of plan respectively dated 17/08/1993 and 22/12/1993.
4. Ld. Advocate Rajendra Yadav for plaintif requested
to compare map vide Exh.89 alongwith map vide Exh.53.
Admittedly, both maps were submitted to MCGM as per ofcial
seal of MCGM on 04/05/1993. However map vide Exh.53 is
not legible, therefore plaintif has submitted fresh legible
photocopy vide Exh.89. It is added that there was a provision
of toilet and bath-room to reserve for the tenant at the time of
redevelopment, therefore plaintif is entitled for relief as
claimed in present suit. It is added that plaintif has recently
received these documents under RTI, it is prayed that plaintif
be permitted to lead additional evidence.
5. Ld. Advocate Mangale for defendant no.6 submits
that upon development of Plot No.280, building was
completed in 1996. Thereafter occupation certifcate came to
be granted. Plaintif enjoys his possession on Plot No.282, it is
case of plaintif that he was using the toilet. However, the
impugned toilet was reserved for shop owners and security
personnel. It is strongly objected that documents preferred
vide Exh.83 came to be exhibited and production was allowed
without any reply and chance of hearing given to defendant
no.6. It is requested to peruse roznama that plaintif has
intent to protract the trial. It is claimed to reject the motion.
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N/m No. 1795/19 in Suit No. 5497/06. 3 Order.
REASONS
6. It is pertinent to note at the inception that suit is 15
years old. Plaintif has closed the evidence long back.
Defendant no.6 has closed the evidence vide Exh.80 on
15/01/2018. Issues are there on record vide Exh.25 dated
14/06/2011. Most of the facts to the existence of
development plan submitted by the developer, the building in
possession of defendant no.6 society came to be completed in
1996, thereafter occupation certifcate was granted etc. are
not disputed facts.
7. The various documents submitted vide Exh.83
came to be exhibited by this Court as Exh.84 to 89 being
certifed copies as relevant documents came to be submitted
to the MCGM. Accordingly document submitted by developer
Kelkar and Associates to the MCGM at Exh.94. These
documents are furnished by MCGM to the plaintif as per
availability of record under the provisions of RTI Act. Therefore
the documents at sr.no.1 to 4 are marked as Exh.97 to 100.
8. Now the question is, plaintif is intending to enter
into witness box to prove the contents of documents from
Exh.84 to 89 and 97 to 100 which appear previous
communication between developer and MCGM ofce i.e.
certifed copies alongwith various plans. The simple question
is, whether plaintif has reserved his evidence ? Whether
plaintif was refrained from deposing and not fled evidence
when exhibit was marked by this Court ? The obvious answer
is in negative.
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N/m No. 1795/19 in Suit No. 5497/06. 4 Order.
9. On perusal of plaint, the simple question is, right
vested with plaintif in respect of suit premises, more
specifcally as mentioned in Issue No.2, relating to amenities
of toilet, water connection etc. Upon providing ample
opportunity, plaintif has closed the evidence, equally
defendant has also closed the evidence. On perusal of
roznama, it was posted for fnal arguments on 15/01/2018 and
thereafter on some dates suit was shown to be posted for fnal
arguments. In such eventuality, it can be concluded that
evidence was not closed in haste.
10. It is well settled judicious principle that there must
be fair opportunity and ample chance required to be provided.
On perusal of aforesaid documents vide Exh.84 to 89 and 97
to 100, plaintif is not author of the documents. It appear to
be communication between MCGM and developer. It is
admitted that Exh.53 and 89 are replica of each other, both
were endorsed by ofcial signature of MCGM on 04/05/1993.
Considering aforesaid discussion, the purpose to bring the
documents on record as per list vide Exh.83 and 94 is
completed. No purpose would sufce by calling the plaintif
again in witness box, on the contrary, it will lead in protraction
of trial, wherein the suit is already 15 years old. In net result,
motion deserves to be dismissed.
11. I heard Advocate Mangle for 15 minutes. I heard ld.
Advocate Yadav for 35 minutes in the beginning of this order.
After completion of aforesaid order, ld. Advocate Yadav again
interfered and requested the Court to peruse Para No.13 to 17
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N/m No. 1795/19 in Suit No. 5497/06. 5 Order.
as per afdavit dated 13/04/2019. It is added that at the time
of preparation of written arguments, plaintif got knowledge in
respect of aforesaid documents, therefore plaintif has
preferred this motion.
12. Again the simple question arise, whether any
hindrance was there to the plaintif when his turn was there to
lead the evidence. In aforesaid order, it is observed in detail
that despite providing ample opportunity to him, he might not
submit anything in respect of plan submitted, sanction of
MCGM, occupation certifcate granted, building occupied by
defendant no.6 etc. It clearly indicate motion is preferred with
intent to proliferate the trial. Hence the order :
- ORDER -
1. Notice of Motion No. 1795/2019 stands dismissed.
2. N/m No. 1795/19 is disposed of accordingly.
3. Suit is posted for fnal arguments, it is 15 years old,
parties may insist for expedite hearing.
4. Next date 13/03/2020 is given at the convenience
of both side.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 10/02/2020. Mumbai.
1. Dictated on : 10/02/2020.
2. Transcribed on : 12/02/2020.
3. Signed on : 13/02/2020.
4. Delivered to Certifed :
Copy Section on
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N/m No. 1795/19 in Suit No. 5497/06. 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13/02/2020. 1.41 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of
Judgment/Order
10/02/2020.
Judgment/Order signed by P.O. on 13/02/2020.
Judgment/Order uploaded on 13/02/2020.
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