Interim Order 1

Order Details: Order below exhibit
Pdf Text: 1 Order below Exh. 25 in
Comm. Suit 18/2019
MHCC010057122019
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
ORDER BELOW EXH.25
IN
COMMERCIAL SUIT No.18 of 2019
Mr. Bhupendra Jayantilal Jain …PLAINTIFF
VERSUS
M/s SRP Textile (partnership firm) & others …DEFENDANTS
Shri Dheeraj Rathore, learned advocate for plaintiff
Shri Vaibhav Kamble h/f. Shri Jayesh Rathod, learned advocates
for defendants
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
O R D E R
(Delivered on 6/2/2023)
Plaintiff has filed this application leading additional
evidence. He stated that he has not closed his evidence. Plaintiff wish to
lead additional evidence. He has filed some certified true copies of
documents and some original documents after filing of the affidavit of
evidence. Due to delay in getting the certified copies, the plaintiff was
unable to file the said copies on record at the time of his evidence.
Hence, this application for permission to file additional evidence.
Defendants have filed reply and strongly opposed this application.
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2 Order below Exh. 25 in
Comm. Suit 18/2019
2] Heard learned counsel of both parties. Perused record.
Order XI Rule 1 of the CPC as applicable to the commercial suits
brought about a radical change and it mandates the plaintiff to file a list
of all documents, photocopies of all documents, in its power,
possession, control or custody, pertaining to the suit, alongwith the
plaint and a procedure provided under Order XI Rule 1 is required to be
followed by the plaintiff and the defendant, when the suit is the
commercial suit. Order XI Rule 1, as applicable to commercial suits
reads as under:
ORDER XI DISCLOSURE, DISCOVERY AND INSPECTION OF
DOCUMENTS IN SUITS BEFORE THE COMMERCIAL DIVISION OF A
HIGH COURT OR A COMMERCIAL COURT
1. Disclosure and discovery of documents. — (1) Plaintiff shall
file a list of all documents and photocopies of all documents, in
its power, possession, control or custody, pertaining to the suit,
alongwith the plaint, including: —
(a) documents referred to and relied on by the plaintiff in the
plaint;
(b) documents relating to any matter in question in the
proceedings, in the power, possession, control or custody of the
plaintiff, as on the date of filing the plaint, irrespective of
whether the same is in support of or adverse to the plaintiff’s
case;
(c) nothing in this Rule shall apply to documents produced by
plaintiffs and relevant only– (i) for the crossexamination of the
defendant’s witnesses, or (ii) in answer to any case set up by the
defendant subsequent to the filing of the plaint, or (iii) handed
over to a witness merely to refresh his memory.
(2) The list of documents filed with the plaint shall specify
whether the documents in the power, possession, control or
custody of the plaintiff are originals, office copies or photocopies
and the list shall also set out in brief, details of parties to each
document, mode of execution, issuance or receipt and line of
custody of each document.
(3) The plaint shall contain a declaration on oath from the
plaintiff that all documents in the power, possession, control or
custody of the plaintiff, pertaining to the facts and circumstances
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3 Order below Exh. 25 in
Comm. Suit 18/2019
of the proceedings initiated by him have been disclosed and
copies thereof annexed with the plaint, and that the plaintiff does
not have any other documents in its power, possession, control or
custody. Explanation. – A declaration on oath under this subrule
shall be contained in the Statement of Truth as set out in the
Appendix.
(4) In case of urgent filings, the plaintiff may seek leave to rely
on additional documents, as part of the above declaration on oath
and subject to grant of such leave by Court, the plaintiff shall file
such additional documents in Court, within thirty days of filing
the suit, along with a declaration on oath that the plaintiff has
produced all documents in its power, possession, control or
custody, pertaining to the facts and circumstances of the
proceedings initiated by the plaintiff and that the plaintiff does
not have any other documents, in its power, possession, control
or custody.
(5) The plaintiff shall not be allowed to rely on documents, which
were in the plaintiff’s power, possession, control or custody and
not disclosed alongwith plaint or within the extended period set
out above, save and except by leave of Court and such leave shall
be granted only upon the plaintiff establishing reasonable cause
for non–disclosure alongwith the plaint.
(6) The plaint shall set out details of documents, which the
plaintiff believes to be in the power, possession, control or
custody of the defendant and which the plaintiff wishes to rely
upon and seek leave for production thereof by the said
defendant…………………………………
3] In the present case, the suit was proceeded exparte against
defendant as per order dt.22/10/2019. Thereafter, plaintiff has filed
affidavit of Chiefexamination of PW1 – Ravi Shah on 20/11/2019. The
documents filed by plaintiff are marked exhibit No.8 to 22 as per
roznama dt.15/2/2021. Thereafter, on 9/3/2021 plaintiff has filed this
application (Exh.25). Defendants have filed Notice of Motion
No.1009/2021and 951/2022, which came to be allowed as per order
dt.22/7/2022 as under :
1. Defendant Nos.1, 3 and 4 are allowed to participate in
this proceeding.
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4 Order below Exh. 25 in
Comm. Suit 18/2019
2. Defendant Nos.1, 3 and 4 are allowed to take cross
examination of witness of plaintiff subject to the
condition mentioned in aforesaid case law of Modula
India.
3. Defendant Nos.1, 3 and 4 are allowed to take inspection
of the proceeding and allowed for final arguments.
4] Plaintiff has not mentioned specific document in this
application. He vaguely mentioned in application that he wish to lead
additional evidence as he has filed some certified true copies of
documents and some original documents after filing of the affidavit of
evidence. As per aforementioned provisions the plaintiff shall file a list
of all documents and photocopies of all documents, in its power,
possession, control or custody, pertaining to the suit, alongwith the
plaint. As per order XI Rule 1(3) the plaintiff ought to have file
declaration on oath that all documents have been disclosed but plaintiff
has not made such declaration on oath in the plaint. As subrule 5
plaintiff shall not be allowed to rely on documents, which were in his
power, possession, control or custody and not disclosed alongwith
plaint or within the extended period set out above. There is no
reasonable cause for nondisclosure of the said documents alongwith
the plaint. There is no provision to lead additional evidence/chief
examination. In such facts and circumstances, it is not desirable to allow
plaintiff to file additional evidence. Hence, I pass following order.
ORDER
Application Exh.25 is rejected.
Date :6/2/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32.
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5 Order below Exh. 25 in
Comm. Suit 18/2019
Dictated on : 06/02/2023
Checked on : 06/02/2023
Signed on : 06/02/2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06/02/2023 Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 06/02/2023
Order signed by P.O. on 06/02/2023
Order uploaded on 06/02/2023
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