Final Order 1

Order Details: Chamber summons
Pdf Text: CS 1022-19 in Suit no. 4125-09
H.C.Suit No. 2150 of 2009
1 Date : 16.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1022 OF 2019
IN
SUIT NO. 4125 OF 2009
(H.C.SUIT NO. 2150 OF 2009)
(CNR NO.MHCC01 0053742019 )
Neeta Goel .. Applicant /
Org. Plaintiff
IN THE MATTER OF
Neeta Goel. .. Plaintiff
Versus
Apurva Shah .. Defendant
Appearances :
Advocate Ms. Samruddhi M. Sonar i/b Dhruve Liladhar and Co.
for plaintiff present
None for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 16.11.2019
ORDER
1. The plaintiff filed instant Chamber Summons praying for
following reliefs :
(a) That this Hon’ble Court be pleased to allow the plaintiff to
lead rebuttal evidence for the issues on which the buden
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H.C.Suit No. 2150 of 2009
2 Date : 16.11.2019
of proving lies on the defendant as provided under Order
XVIII, Rule 3 of the Code of Civil Procedure, 1908.
(b) For such other and other reliefs as the nature and
circumstances of the case may require.
2. It is contended by the plaintiff that she has filed suit seeking
declaration against defendant to deliver 39,900 shares of Shri.
Bajrang Alloys Ltd. and seeking direction against the defendant to
pay Rs. 53,200/ alongwith 18% interest to the plaintiff as claimed
by her from the filing of the suit till its realization. The defendant
filed his Written Statement. On the basis of the pleadings of the
parties on 02.02.2018, this Court has framed issues below Exh.3.
3. It is contended by the plaintiff that the defendant admitted
transfer of 13,300 equity shares of Shri. Bajrang Alloys Ltd. in his
Demat Account. However, it is the case of the defendant that
transfer was without consideration. It is alleged by the defendant
that the plaintiff and her family members were in need of money
and wanted to raise money by using shares held by the company
under the promoter quota and since the plaintiff purportedly could
not transfer the shares. Therefore, the plaintiff approached the
defendant to transfer of the said shares in his Demat Account and
with further instruction to transfer the same to the party
nominated by the plaintiff and her family members and plaintiff
received consideration directly. Thus, it is contended that the
burden to prove in respect of issue no. 3, 4 and 5 is on the
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H.C.Suit No. 2150 of 2009
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defendant and for the other issues, burden is upon plaintiff.
4. It is contended by the plaintiff that the onus to prove the
issue no. 3, 4 and 5 is on the defendant. Therefore, in view of
Order XVIII Rule 3 of Code of Civil Procedure, there are issues, of
which the burden of proving lies on the defendant, the plaintiff
may merely adduce the evidence on those issues, onus to prove
which lies upon the plaintiff, reserving her right to call rebutting
evidence on the issues, the burden of which lies on the defendant.
Therefore, plaintiff prayed for allowing her to lead the evidence of
those issues, the burden lies upon her and she reserve her evidence
by way of rebuttal to answer the defendant’s case. Hence, the
plaintiff prayed for allowing the present application.
5. The defendant opposed application by filing say. It is
contended by the defendant that the onus to prove her case is
upon plaintiff and till such time the onus can not be shifted to the
defendant. Unless and until, the plaintiff does not prove
truthfulness of the documents relied by her, she could not claim
that her claim is true and therefore, she could not lead the
evidence of all the issues. During the course of argument, the
defendant submitted that it is not an appropriate step for filing
present application. The plaintiff ought to have filed the
application prior to filing of Evidence on Affidavit. Hence, the
defendant prayed for rejection of the Chamber Summons.
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6. Heard both the sides. Perused Chamber Summons, reply as
well as pleadings of the party. On the basis of pleadings, my
predecessor framed issues below Exh. 3. Out of which burden in
respect of issue no. 3,4 and 5 is upon the defendant who claimed
that at the instance of plaintiff 13,300 shares of Shri. Bajrang
Alloys Ltd. were transferred into his demat account and
subsequently it was transferred to the person nominated by the
plaintiff and consideration of the same was received by the
plaintiff. In view of Order XVIII Rule 3 of Code of Civil Procedure,
which read as under:
“Where there are several issues, the burden of
proving some of which lies on the other party,
the party beginning may, at his option, either
produce his evidence on those issues or reserve
it by way of answer to the evidence produced
by the other party; and, in the latter case, the
party beginning may produce evidence on those
issues after the other part has produced all his
evidence, and the other party may then reply
specially on the evidence so produced by the
party beginning; but the party beginning will
then be entitled to reply generally on the whole
case”.
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H.C.Suit No. 2150 of 2009
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7. Thus, upon reading of above provision it is ample clear that
where there are issues of which burden of proving lies on the
defendant, plaintiff may merely adduce on those issues, the onus
of proving which lies upon the plaintiff, reserving her right to call
rebutting evidence on the issues, the burden of proving which, lies
upon the defendant. The plaintiff can reserve her right by way of
rebuttal to answer the defendant’s case. Therefore, I have no
hesitation to allow the plaintiff to reserve her right as per Order
XVIII Rule 3 of Code of Civil Procedure.
8. It is contended by the defendant that plaintiff ought to have
filed aforesaid application prior to examination in chief. Per
contra the plaintiff’s advocate by relying on the decision of
Hon’ble Bombay High Court reported in 1979 Mh.L.J. Page 220
in case of Nipendrachandra Bid V/s. Rajaramka P. & P. Mills
and judgment reported in 2012 (3) Mh.L.J. in case of
Shahnawazkhan s/o. Abdul Raihmankhan V.s, Azarunnisa
Begum w/o Mohd. Abdul Rauf. & Ors., argued that there is no
such time prescribed under Order XVIII Rule 3 of Code of Civil
Procedure to exercise the option of the plaintiff.
9. I have gone through with both the judgments. In both the
case laws, the Hon’ble Bombay High Court held that the option
described under Rule XVIII Rule 3 of the plaintiff of reserving its
rights to its evidence in rebuttal, the said right can be exercise
before other party has begin his evidence. Hence, I did not find
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6 Date : 16.11.2019
substance in the objection of the defendant. In my view, Order
XVIII Rule 3 unequivocally grant right in favour of the plaintiff to
reserve her right to its evidence in rebuttal. Hence, Chamber
Summons needs to be allowed. Thus, I proceed to pass the
following order :
ORDER
1. Chamber Summons No. 1022 of 2019 is hereby made
absolute in terms of prayer clause (a).
2. Parties to bear their own cost.
3. Chamber Summons No. 1022 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 16.11.2019 Greater Bombay.
Dictated on : 16.11.2019
Typed on : 16.11.2019
Draft Submitted on : 16.11.2019
Checked on : 18.11.2019
Signed on : 18.11.2019
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H.C.Suit No. 2150 of 2009
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
19/11/2019 at 12.00 noon (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
16/11/2019
JUDGMENT/ORDER signed by P.O.
on
18/11/2019
JUDGMENT/ORDER uploaded on 19/11/2019
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