Order 4

Order Details: Order below exhibit
Pdf Text: 1 OBE 34 in Comm.Suit No.022021
MHCC010053412020
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
ORDER BELOW EXHIBIT 34
IN
COMMERCIAL SUIT No.02 OF 2021
Tejmalji Veeraji Darbar …PLAINTIFF
VERSUS
Deep Singh Bhik Singh Deora & Ors. …DEFENDANTS
Shri.Bindra, learned advocate for plaintiff.
Shri. V. N. Naik, learned advocate for defendant Nos.1 and 3.
CORAM : JUDGE, SHRI VISHAL SADASHIVRAO GAIKE, ROOM
NO.32, CITY CIVIL COURT, MAZGAON, MUMBAI
O R D E R
(Delivered on 04/01/2024)
1. This is an application on behalf of the plaintiff praying for
denial of permission by the Court to the defendant Nos.1 and 3 under
Order XI Rule 3 (5) of the Code of Civil Procedure, 1908 (Amended) for
relying upon the documents of which inspection was not given to the
plaintiff.
2. It is stated on behalf of the plaintiff that, the defendant's
advocate had addressed notice dtd.16/11/2022 to his advocate and had
requested for inspection of documents annexed to and relied upon in
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the plaint. Through email dtd.03/12/2022 the advocate of plaintiff
called upon advocate of defendant Nos.1 and 3 to permit inspection of
all documents annexed to and relied upon in the Written Statement.
The inspection was fixed on 05/12/2022 at 2.30 p.m. but the
defendants failed to give inspections. Thereafter, through email
dtd.07/12/2022 the defendant Nos.1 and 3 convey their inability and
requested for another suitable date therefore, inspection was fixed on
08/12/2022 at 6.00 p.m. at the office of plaintiff's advocate.
3. Thereafter, on 08/12/2022 the advocate of defendant
Nos.1 and 3 informed that the said defendants were out of town and
the documents were with them therefore, he cannot give the inspection
of the said documents. Thereafter, through email dtd.11/01/2023 the
plaintiff's advocate again requested for inspection and the advocate of
defendant vide his reply dtd.11/01/2023 showed inconvenience to
provide the inspection hence, the advocate of plaintiff issued a reminder
dtd.06/02/2023 but, no response was received from the defendant's
advocate. Therefore, the said defendants be barred from relying upon
any documents annexed or referred in their written statement.
4. The defendants filed their affidavit and reply and opposed
the application. It is stated that in the month of April 2021 defendant
No.3 lost his only son in an road accident therefore, the entire family
went in trauma and depression and hence, for relieving mental stress,
the entire family went to Rajasthan in their native place. After receiving
email for inspection of documents, the advocate of defendant No.3 had
duly replied through email dtd.07/12/2022, letter dtd.08/12/2022 and
email dtd.07/02/2023 mentioning about the non availability of
defendant No.3 in town and therefore, his advocate's inability to
provide inspection. It was informed that the inspection would be
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3 OBE 34 in Comm.Suit No.022021
provided on 08/02/2023 in the Court Hall. On that day one Junior
Advocate appeared on behalf of the learned advocate of plaintiff and
upon instructions did not take inspection of documents stating that she
had no instructions from her senior.
5. That, the defendant No.3 was always ready and willing to
give inspection of documents referred by him in the written statement
therefore, present application may kindly be dismissed with costs.
6. Heard the parties. Perused the record. It appears from the
copies of email that were exchanged between the advocate of plaintiff
and defendant Nos.1 and 3 that, requests were made on behalf of
plaintiff for inspection of documents relied upon by the defendants.
Initially the defendant's advocate conveyed inability to give inspection
on the ground that defendant No.3 was out of station and thereafter the
advocate of defendant informed the learned advocate of plaintiff that
inspection of documents shall be given on 08/02/2023 in the Court
Hall. It is alleged that, the junior of advocate of plaintiff refused to take
inspection of documents on the ground that, she has no instructions
from her senior, but if the roznama of 08/02/2023 is perused then it
appears that advocate Priyanka Chavan i/b. Advocate V. N. Naik
appeared for defendant and advocate Almas i/b. Advocate Rajesh
Bindra appeared for plaintiff. The advocate for defendant did not make
any submission at that time that she was ready to give inspection of
documents to the advocate of plaintiff present in the Court Hall.
7. That, on the same day at 1.30 p.m. advocate Rajesh Bindra
appeared for plaintiff and advocate Priyanka Chavan i/b. Advocate V. N.
Naik appeared for defendant Nos.1 and 3. She filed affidavit of
admission and denials of defendant No.1 at Exh.30 and 31 and that of
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defendant No.3 at Exh.32 and 33. Even at that time she did not make a
statement that she is ready to give inspection of documents to the
advocate of plaintiff and also did not inform the Court that, earlier on
that day the inspection was refused by the junior advocate Almas for
plaintiff. Hence, it is apparent from all these facts that the defendant
Nos.1 and 3, despite of multiple requests from the advocate of the
plaintiff for inspection of documents, did not provide the same.
Therefore, the affidavit of admission and denial of the plaintiff has not
come on record and plaintiff was constrained to file the present
application. Be that as it may, the documents relied upon by the
defendant in their written statement may be necessary for deciding the
dispute between the parties.
8. That, as per the provision of Order XI Rule 3(5) of the CPC,
a leave may be granted to a party to rely upon the documents, the
inspection of which was not given to the other side. The defendant
Nos.1 and 3 has in their reply shown their willingness to give the
inspection of their documents. But, for causing undue delay in giving
the said inspection, a conditional leave needs to be granted to
defendant Nos.1 and 3 for relying upon the documents which are
annexed and relied upon in their written statement. Consequently, I
proceed to pass following order.
ORDER
1. Application Exh.34 is hereby disposed off as follows :
a. The defendant Nos.1 and 3 are granted leave to rely on the
documents annexed with and relied upon in their written statement, on
the condition that they shall give inspection of their documents to the
advocate of plaintiff and pay costs of Rs.5,000/(Rupees Five Thousand
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only) to the plaintiff, on or before next date.
b. If the defendant Nos.1 and 3 fail to comply the above
directions/conditions then, the present application Exh.34 will
automatically stand allowed and the defendant Nos.1 and 3 shall be
barred from relying upon the documents annexed and relied upon in
their written statement.
( VISHAL SADASHIVRAO GAIKE )
JUDGE, CR NO.32,
Date : 04/01/2024. CITY CIVIL COURT, MAZGAON
MUMBAI.
Directly typed on Computer on : 04/01/2024
Printed on : 04/01/2024
Signed on : 04/01/2024
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6 OBE 34 in Comm.Suit No.022021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04/01/2024 at 5.40 p.m. Mrs. Rupali S. Bhor
Name of the Judge ( With Court
Room No.)
H.H.J. Shri Vishal S. Gaike
(Court Room No.32)
Date of Pronouncement of
JUDGMENT/ORDER
04/01/2024
JUDGMENT/ORDER signed by
P.O. on
04/01/2024
JUDGMENT/ORDER uploaded on 04/01/2024
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