Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.1695 of 2020
CNR:MHCC01-005127-2020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.1695 OF 2020
IN
L.C. SUIT NO.1212 OF 2010
M/s. D. Abraham & Sons Pvt. Ltd., .. Applicant/
Defendant No.4
In the matter between
All India Medical Corporation & Anr. .. Plaintiffs
V/s.
1 The Municipal Corporation
of Greater Mumbai & Anr. .. Defendants
Appearance:-
Adv. Sagar Pillai i/b Deven Dwarkadas and Partners for plaintiffs.
Adv. Vaibhav for defendant No.4.
Adv. Vidya Vyavahare for defendant No.1 /MCGM present.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 15/12/2023.
ORDER
This Notice of Motion is taken out by the defendant No.4
for expunging/striking off and/or deleting the paragraphs of the
affidavit in lieu of Examination in Chief dated 05.07.2018 of Mr. Ganesh
Gopinath Jadhav as mentioned in schedule appended with Notice of
Motion.
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2. Perused the affidavit in support of Notice of Motion and
reply. Herd both sides.
3. Learned Advocate for the defendant No.4 submitted that
substantial portions in the affidavit in lieu of Examination in Chief of
aforesaid witness are in the nature of submission of argument and not
in the nature of evidence. It is, therefore, necessary that the said
portions in the evidence which is not testimony or evidence is required
to be excluded from the consideration. These portions in the form of
argumentative and in the nature of pleadings are inserted with an
attempt to controvert as to what is stated in the plaint or in the written
statement. The learned Advocate for the defendant No.4 in support of
his submission placed reliance on,
“Harish Loyalka and Anr. V/s. Dileep
Nevatia and Ors. 2014 (4) ABR 545 the Hon’ble High Court of Bombay.”
4. On the other hand, learned Advocate for the plaintiff
submitted that this Notice of Motion is taken out almost after two years
of filing the affidavit of evidence of PW-1. This Notice of Motion is
taken out only to prolong the matter. He submitted that the contentions
in the affidavit in lieu of Examination in Chief are supported by
pleadings and annexture filed on record. The learned Advocate for the
plaintiff, therefore, vehemently submitted that the Notice of Motion is
liable to be dismissed.
5. In the light of respective submissions, I have carefully gone
through the respective pleadings, copies of documents and evidence
which is filed on record. Having regard to the schedule appended with
Notice of Motion, it reveals that the defendant No.4 is having grievance
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regarding paragraphs Nos. 10, 36, 38 to 42 and 44 to 47 of the affidavit
of evidence. No doubt, apart from averments in the pleadings, several
facts have been deposed by way of narration pertaining to the
provisions of D.C. Rules, Guidelines approved by the State of
Maharashtra. However, facts narrated in the affidavit of evidence of
deponent Mr. Ganesh Gopinath Jadhav appear to be pertaining to the
facts which are pleaded in the plaint and in connection with the
documents filed on record.
6. I have carefully gone through the observations and ratio
laid down in the case of
Harish Loyalka (supra). After careful
consideration of the guidelines and ratio laid down in this case, it
revealed that the Hon’ble High Court of Bombay has specifically
observed in paragraph No. 24
“On the footing that a court - s power to
delete - any portion of an evidence affidavit (even portions that are
inadmissible) is completely taken away, a court may still rule on
portions of the affidavit to which objections are taken and direct that
those portions be excluded from consideration as testimony ; i.e., that a
cross-examiner will be at liberty to ignore those portions without fear of
an adverse inference being drawn”.
Thereafter, in paragraph No.29, it is held that
“Mr. Joshi for the
plaintiff in the suit, and Dr. Saraf, learned Advocate for defendant No.5
in the suit, will be at liberty to ignore and, without risk of adverse
inference or other consequence, not be required to cross-examine Mr.
Nevatia on the following portions of his affidavit dated 27th August-
2010 in lieu of examination-in-chief.”
7. Having regard to the guidelines and ratio laid down in the
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case, supra, I am of the view that if any portion of the evidence of the
deponent in this case appears to be irrelevant or beyond pleadings,
defendant No.4 is entitled to ignore the same on the footing
“No
pleadings, No evidence”. In fact, it is already discussed that the
aforesaid averments as mentioned in the schedule appended with
Notice of Motion are in the form of narration and not in the form of
argumentative. Therefore, no question arise of striking of and/or
deleting those paragraphs of affidavit of the aforesaid deponent, as
prayed for. In this view of the matter, I proceed to pass following order.
ORDER
1 Notice of Motion No.1695 of 2020 is hereby dismissed.
2. However, liberty is granted to defendant No.4 to ignore the
portion of affidavit of evidence of the aforesaid witness, if the
same is shown to be irrelevant or without pleadings at the time of
cross examination of aforesaid deponent.
3. Costs in cause.
4. Notice of Motion stands disposed off accordingly.
Sd/-
Date:15/12/2023. (R. M. Mishra )
Dictated on :15/12/2023. Judge, City Civil Court,
Typed on :15/12/2023. Gr. Mumbai.
Signed on :15/12/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/12/2023 05.15 p.m. (Ms. Ujwala J. Bhagat)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
15/12/2023
JUDGMENT/ORDER signed by P.O.on 15/12/2023
JUDGMENT/ORDER uploaded on 15/12/2023
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