Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.214718
CNR No. MHCC010069652018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2147 OF 2018
IN
SUIT NO.8397 OF 1998
(HIGH COURT SUIT NO.4431 OF 1998)
Mukund Ltd., & Anr. ...Plaintiffs.
V/s.
Ocean Greyhound Lines S. A. & Ors. ...Defendants.
Appearances:
Ld. Adv Mr. Vishal Talsaniya for plaintiffs.
Ld. Adv Mr. Vaibhav Singh for defendant no.3.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 11th JANUARY, 2019
ORDER
1. Defendant no.3 has taken out this notice of motion for rejecting
affidavit in lieu of examination of chief of PW2.
2. His contention is that this notice of motion is under section 151 of
the Code of Civil Procedure for rejecting the evidence sought to be filed
by plaintiff on 07.03.2018. He further contended that plaintiff's
attempt to lead further evidence through a new witness, Capt. Vitcor
Elijah (PW2) after completion of cross examination of PW1. He
further contended that issues were framed on 07.02.2015. Since then
several opportunities have been granted, plaintiff to lead evidence. It is
pertinent to note that more than three years have been lapsed since the
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plaintiffs were granted the opportunity to lead evidence, however, it
was only on 06.02.2018 that the plaintiffs for the first time expressed its
intention to lead PW2 as a witness and lead further evidence. It is not
the case of the plaintiffs that they were not aware of the existence of
PW2 and they became aware of the same at a later point in time. It is
not the plaintiffs case that they were not in a position to lead PW2 as a
witness and lead further evidence prior to 06.02.2018. He further
contended that from 07.02.2015 several adjournments were sought by
the plaintiffs for filing of evidence. Plaintiffs were ordered to pay costs
of Rs.3,000/ to the Legal Aid. The said costs was deposited by the
plaintiffs on 04.07.2015. Finally, on 04.08.2015 plaintiffs filed the
evidence of PW1. It further contended that the affidavit of evidence of
PW1 does not bring on record any new facts, events that may have
come into existence or which are not within the knowledge of plaintiff
prior to filing of the affidavit in lieu of evidence. In fact, the only
document that the affidavit in lieu of evidence makes mention of and
relies on is a survey report that as already been taken on record and
marked as Exh.31. As such, the affidavit in lieu of evidence does not
bring on record any new document, fact or event. It is settled law that
a party may be allowed to lead additional evidence only after it has
satisfied the Court that it came across some evidence which it could not
lay hands on earlier.
3. His further contention is that affidavit of PW2 has been filed only
to cover up lacuna in plaintiff's case. With this, he prayed for rejecting
affidavit of evidence of PW2.
4. Plaintiff by filing reply to the notice of motion objected. Plaintiff's
contention is that defendant no.3 has not pointed out any provision in
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law by which plaintiffs are disentitled to file affidavit of evidence of
their witnesses including PW2 after completion of cross examination of
PW1's evidence. Plaintiffs have not closed their evidence hence, they
are entitled in law to lead evidence of other witnesses. It further
contended that the provision relied by the defendant no.3 that restricts
the plaintiffs to lead further evidence only after it has closed its
evidence and it has come across some evidence which it could not lay
hands on earlier was dealt with by Rule 17A of Order XVIII of the Code
of Civil Procedure. The said Rule 17A of Order XVIII of the Code of
Civil Procedure has been omitted by the Code of Civil Procedure
amended Act, 1999. The said Rule dealt with the production of
additional evidence after closure of the evidence and leading of
evidence at any stage and does not deal with the present case as the
plaintiffs have not closed their evidence and have already filed their
affidavit of evidence of PW2 i.e., Capt. Victor Elijah, who is the author
of the survey report which document has already been admitted and
marked as Exh.31 subject to proof. Hence, the author of the document
cannot be prevented from leading evidence. It further contended that it
is well settled law that it is the duty of the Judge to examine each and
every evidence of the witness which has been tendered, unless it
appears that the object of summoning a large number of witnesses is to
obstruct or delay justice. He further contended that defendant's notice
of motion is nothing but to delay the trial and obstruct the proceedings.
With this, he prayed for dismissal of notice of motion.
5. I have heard Advocates for both the parties.
6. Advocate for defendant no.3 submitted that the plaintiff cannot
lead additional evidence as document is exhibited. Advocate for
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defendant no.3 relied upon judgment of Delhi High Court in between
Raunaq Automotive Components Ltd., V/s. J P S Kanwar, delivered on
16.09.2015. Advocate for plaintiff submitted that the authority is not
applicable in the present case. In that authority after closing the
evidence of plaintiff, the plaintiff made an application for leading
additional evidence of witness whose name is not there in the original
list of witnesses so, the Joint Registrar dismissed the said application by
order dated 22.05.2015 after observing that the application has been
filed after five years of the closure of the evidence in order to fill up a
lacuna which was not permissible. The said order was challenged in the
Hon'ble High Court. The Hon'ble High Court has observed that Order
XVIII Rule 17A of the Code of Civil Procedure has been deleted with
effect from 01.07.2002. It also reproduced para 11 in K. K. Velusamy
V/s. N. Palanisamy, (2011) 11 SCC 275:
“11. There is no specific provision in the Code enabling the
parties to reopen the evidence for the purpose of further
examination in chief or cross examination. Section 151 of the
Code of provides that nothing in the Code shall be deemed to
limit or otherwise affect the inherent powers of the Code to
make such orders as may be necessary for the ends of justice
or to prevent the abuse of the process of the court. In the
absence of any provision providing for reopening of evidence
or recall of any witness for further examination or cross
examination, for purposes other than securing clarification
required by the court, the inherent power under section 151
of the Code, subject to its limitations, can be invoked in
appropriate cases to reopen the evidence and/or recall
witnesses for further examination. This inherent power of the
court is not affected by the express power conferred upon the
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court under Order 18 Rule 17 of the Code to recall any
witness to enable the court to put such question to elicit any
clarifications.
7. Advocate for plaintiffs submitted that PW1 filed affidavit of
evidence Exh.11 on 02.03.2017 and then matter is adjourned from time
to time and cross examination was completed on 06.02.2018 and
adjourned for further evidence on 07.03.2018. Plaintiffs filed affidavit
of PW1 on 07.03.2018. Plaintiffs have not closed the evidence so,
there is no question arise permission to lead additional evidence so,
notice of motion is nothing but to prolong the trial.
8. I have gone through the authority relied by Advocate for
defendant no.3. In that case, after closing the evidence after five years,
the plaintiffs filed an application for leading additional evidence so, it
was rejected. In the present case, plaintiffs evidence is not closed, cross
examination of PW1 was completed on 07.02.2018 and immediately
on the next date i.e., 07.03.2018 plaintiffs filed affidavit of PW2, who
is author of inspection report. Inspection report was carried out by PW
2 so, he is the best witness to prove inspection report so, even exhibit is
given in plaintiff's evidence, plaintiff can ought to have examined PW2
for proving the contents of report. Therefore, I find that notice of
motion is nothing but to delay the proceedings. It is not necessary to
see what was time taken by plaintiff for filing affidavit of evidence after
framing of issues, only is to consider after once he filed evidence of PW
2 then he is to lead further evidence without taking much time and
Court is to curtail the time. In this case, it shows that after closing the
evidence of PW1, affidavit of evidence of PW2 is filed so, there is no
delay on the part of plaintiff. On the contrary, it shows that by filing
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the present notice of motion, matter is adjourned for cross examination
from 14.03.2018 till today so, it shows that due to notice of motion trial
obstructed so, I find that it is a fit case to impose cost on the defendant
for filing such incorrect / wrong notice of motion. With this, notice of
motion is dismissed with cost of Rs.1,000/ payable to the plaintiff. It is
directed that suit being of old of 1998, PW2 is to remain present and
defendant is to take cross examination of PW2. Accordingly, I proceed
to pass the following order :
O R D E R
1. Notice of Motion No.2147 of 2018 is dismissed with cost of
Rs.1,000/ payable to the plaintiff.
2. It is directed that suit being old of 1998, PW2 is to remain
present and defendant is to take cross examination of PW2 on next
date.
3. Notice of Motion No.2147 of 2018 stands disposed of accordingly.
( KALPANA S. HORE )
Judge,
Dated : 11/01/2019 City Civil Court, Gr. MUMBAI
Dictated on : 11/01/2019
Transcribed on : 11/01/2019
Signed on : 11/01/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
14.01.2019 5.36 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
11.01.2019
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JUDGEMENT /ORDER signed by
P.O. on
11.01.2019
JUDGEMENT /ORDER uploaded
on
14.01.2019
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