Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.1088/2019 ..1.. Suit No.9171/1992
CNR No.MHCC010059542019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1088 OF 2019
IN
SUIT NO.9171 OF 1992
Anil Bimla Singh and others .. Plaintiffs
Versus
Smt. Ramrati Kamla Singh and others .. Defendants
Mr. Sachin Pandey, advocate for defendant No.2(b)
Ms. Nutan S. Moily, advocate for defendant No.1(b)
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 03rd October, 2019
ORAL ORDER
Chamber summons is taken out by defendant No.2(b) making
prayer to allow him to send original documents filed in evidence by
defendant No.1(b) to Directorate of Forensic Laboratories, Kalina to
examine said document and submit their expert opinion regarding
forged signature of Mangala Singh and suspicious authenticity of the
affidavit of advocate identifying the signature of Mangala Singh and
also the authority before whom signature is affirmed.
2. It is the contention of defendant No.2(b) that defendant No.1(b)
has filed additional document i.e. copy of affidavit filed before
Metropolitan Magistrate dated 01.03.1983 for evidence that his
deceased father Mangala Singh has made affirmation of affidavit that he
has no right, title and interest of any nature in the suit property. It is
contended that defendant No.1(b) has not filed original affidavit on
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record of the proceedings of this Court. He further contended that to
the best of his knowledge his deceased father Mangala Singh had never
signed affidavit before Metropolitan Magistrate, Bandra on 01.03.1983
and after perusing the copy of affidavit, signature of his father appears
to be fabricated and writing is not of Mangala Singh. Copy of affidavit is
misused and tampered with dates and signature of advocate R.S. Bhatt.
It is further contended that copy of affidavit has been kept in sealed
cover on record. It is required to be sent to forensic science laboratory
for an expert opinion as to whether signature of Mangla Singh is forged,
tampered and fabricated. Accordingly, defendant No.2(b) has made
prayer in above terms.
3. Defendant No.1(b) vide reply affidavit opposed chamber
summons on the count that relief sought is on false and frivolous
grounds. Defendant No.2(b) has no locusstandi to seek relief in respect
of sending document which is in the custody of court to the
Handwriting Expert to prove the said affidavit dated 01.03.1983. It is
further contended that deceased defendant No.2 has not filed his
written statement during his life time and now, his legal heirs have also
not filed written statement. Therefore, they have lost an opportunity of
adducing evidence. Since there is no denial on behalf of signatory by
way of filing written statement during his life time and even his legal
heirs failed to file written statement so now, defendant no.2(b) cannot
seek reliefs in terms of chamber summons. Accordingly, it is prayed that
chamber summons be dismissed.
4 Perused chamber summons, affidavit in support of it, reply of
defendant No.1(b), pleadings of parties and documents filed on record.
Heard respective counsel for parties. They advanced their arguments in
accordance with respective contention of parties.
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5. At the outset I would like to mention that there is nothing on
record to suggest that defendant No.2 filed his written statement. Suit
proceeded without written statement against legal heirs of defendant
No.2 in pursuance of order dated 10.09.2014. Defendant Nos.1(a) and
1(b) filed their written statement vide Exh.2. They raised contention in
their pleadings about affidavit dated 01.03.1983 and claimed that
defendant No.2 in the said affidavit admitted the fact that original
defendant No.1 is the sole owner of suit property and he and plaintiff
were allowed to occupy block and a garage as a gratuitous licensee
without any payment. Question of denying aforesaid contention made
by defendant Nos.1(a) and 1(b) by original defendant No.2 did not
arise as he was not alive when written statement was filed by them. So,
contention of the defendant No.1(b) in that regard is not of much
significance for the purpose of determination of present chamber
summons.
6. It is to be noted that although defendant Nos.1(a) and 1(b) have
raised contention about the affidavit dated 01.03.1983 in their written
statement and defendant No.1(b) also stated in affidavit of evidence
about the same but that document has not been admitted in evidence
and it is not marked as exhibit. Only the list of documents under which
copy of said affidavit is produced is marked as Exh.16A so it is
incorrect on the part of defendant No.2(b) to refer copy of affidavit as
Exh.16A. Original document is not produced in this proceeding but
defendant No.2(b) has made prayer in present chamber summons to
send original document of affidavit in question for examination by
forensic expert. It is clear from contention of defendant No.2(b) that
defendant No.1(b) has filed original affidavit before Metropolitan
Magistrate. When original document is not before this Court then
question of sending of original document for examination to the
forensic expert by this Court does not arise.
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7. I have gone through issues framed by my learned predecessor.
Burden is casted upon plaintiffs to prove that suit property is joint
family property of themselves and defendants. For deciding the said
issue, it is not necessary to determine genuineness of affidavit dated
01.03.1983. More so, when copy of said affidavit is not admitted in
evidence and marked exhibit then question of taking into consideration
of said affidavit at this stage does not arise. In light of discussion made
above, I am of considered view that there is no need to forward even
copy of the affidavit dated 01.03.1983 to the forensic expert for
examination of the same. That being so, chamber summons deserves to
be dismissed. Hence, pass following order.
ORDER
Chamber Summons No.1088 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 03.10.2019 Gr. Bombay
Typed on : 03.10.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.10.2019, 4.00 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
03.10.2019
JUDGMENT/ORDER signed by P.O.
on
04.10.2019
JUDGMENT/ORDER uploaded on 04.10.2019
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