Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2194 OF 2018
CNRMHCCO10071032018
IN
S.C.SUIT NO. 4756 OF 1982
CNRMHCCO10001421982
P.M. Pai (Since deceased)
1. Balkrishna Prabhakar Pai & Ors. )....Plaintiffs.
V/s.
1. V.R.Sharma,(Since deceased)
1A Ganesh Sharma and Ors. )...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.02)
DATE : 05/10/2018.
Adv. M.M.Shetty for the plaintiff.
Defendant no.1(a) inperson.
Adv. Sunita Sonawane for the defendant no.5
Adv. T.M.Nadar for the defendants no.7(a),(b),8 and 10
ORAL ORDER
This notice of motion is taken out by the defendant no.5 for
discarding the evidence filed by Mr. Ganesh Sharma. Notice of motion
is supported by an affidavit being executed by Suresh Narayan Jagtap
the Hon. Secretary of the defendant no.5. The plaintiffs has filed the
reply on affidavit being executed by Balkrishna Prabhakar Pai, thereby
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strongly opposing the notice of motion. The defendant no.1(a) has also
filed affidavit in reply opposing the notice of motion. The defendant
no.7(a),7(b), 8 and 10 also has strongly opposed the notice of motion
by filing affidavit in reply being executed by Ganesh Sharma.
2. I have heard learned advocate Sunita Sonawane for the
defendant no.5, also heard Advocate M.M.Shetty for the plaintiffs and
Adv. T. M. Nadar for the defendant no.7(a) to 7(c) , 8 and 10. Heard
defendant no.1(a) inperson.
3. At the very outset of the present case, today before the
Court Mr. Ganesh Sharma is present . He has made statement at bar
that he has filed the affidavit in lieu of examination in chief as per
Exhibit16 as a witness for the plaintiff. He also submitted that he has
filed the documents as per list Exhibit17. It is pertinent to note here
that, this witness Ganesh Sharma has filed his affidavit of examination
in chief on 17th April, 2018 alongwith compilation of documents. On
the date of filing of the said affidavit and documents, the defendant
no.5 has not raised any objection. This notice of motion is preferred on
the next date. The learned advocate for the defendant no.5 concealed
that there is no specific provision in the Civil Procedure Code under
which this notice of motion is preferred. She submitted that the prayer
in the notice of motion is to be take into consideration by taking
recourse of the provisions of section 151 of the Civil Procedure Code,
i.e. under inherent jurisdiction of the Civil Court.
4. There is no doubt about the fact that the witness Ganesh
Sharma is defendant no.1(a) on record . It is the matter of record that
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the original defendant no.1 was expired and thereafter his legal heirs
were brought on record. Therefore, only because the witness Ganesh
Sharma is defendant no.1 that by itself is no ground to discard his
evidence as there is no provision to show that party is debarred from
examining its adversary as a witness on his behalf. It is trite law that
the plaintiff can examine any witness he so likes i.e. witness even may
be stranger, may be man of his own party or stranger or even may be
defendant to the suit. The plaintiff cannot be precluded from
examining on the ground that the said witness is defendant no.1(a)
who has not filed the written statement on record. The learned
advocate for the defendant no.5 vehemently argued that witness is
appearing in who has not filed his written statement and he has
repeated and reiterated in detail the contents of the plaint. She
strenuously urged before me that the defendant no.1(a) has reproduced
the contents of plaint which he cannot depose as he is not having
personal knowledge of the facts of the case. While arguing on this point
, learned advocate for the defendant no. 5 placed reliance on the case
Shivram Mahadev Shinde Vs. Maharashtra Housing & Area
Development Authority reported in 2015 SCC OnLine Bom 6255:
(2016) 1 AIR Bom R 772: AIR 2016 Bom63 wherein she has drawn
my attention to several paragraphs of the judgment viz. paras no.38 to
44 as under:
38. “This cannot be considered as an evidence
contemplated under the Evidence Act which is to be believed
and relied upon by a Judge. Under Order 18 Rule 4
examinationinchief of the witness shall be on affidavit and
copy thereof shall be supplied to the opposite party. However,
it is expected that the witness should state the true facts of
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whatever he has witnessed. The present affidavitinchief is
nothing but a copy of the plaint. Desai is not the plaintiff. If
this witness was present throughout at the time of all
important instances in respect of the suit land along with
Shivram, then in the plaint, Shivram Shinde ought to have
mentioned Desai's name as a witness. Nowhere in the plaint
the name of this witness is appearing. He did not sigh as a
witness to any document, i.e. Agreement dated 15th June,
1949 between Shivram Shinde and Jaganbabu Thakur
(Exhibit C), Agreement of sale dated 25th April, 1955
(Exhibit5) between Shivram Shinde and Devraj Gundecha,
judgment dated 11th September, 1959 in case
no.535/P/1969(Exhibit 8), Tahilsadar recorded the
statement of Shivram Shinde (Exhibit11), a panchanama of
the spot was drawn on 11th April, 1978 (Exhibit12). original
plaintiff entered into Supplementary Agreement on 11th April,
1978 (Exhibit13) on 25th January, 1979 Shivram Shinde
made written complaint to P.S.I. against MHADA board and
Tahsildar (Exhibit 14) and on 26th August, 1979 original
plaintiff entered into Agreement of Sale with Devraj
Gundecha (Exhibit15). Only power of Attorney (Exhibit 16)
is signed by Ramakant Desai (PW1) as a witness. Except
this, nowhere name of Ramakant Desai is appearing on any
contemporaneous document. Shivram Shinde died on 23rd
September, 1982 and minor son of Shivram Shinde was
definitely 18 years old on 23rd September,1982 when he was
brought on record.
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39. These all statements and evidence of Ramakant Desai
that he was present at the time of all relevant agreements or
transactions are completely shadowed with dishonesty and
falsity and have failed to inspire confidence in the Court. His
presence looks like a comet. This witness is used for the only
purpose of proving the socalled documents. The document of
1949 to 1951 of cutting of para grass cannot be believed
because neither of the parties nor witness were examined. The
submissions of the learned senior counsel that when the evidence
of Ramakant Desai was recorded in the year 2002, the
document was 30 years old and therefore, it is to be read in
evidence under the presumption of Section 90 is correct. A
document can be taken on record if it is 30 years old. Under
Section 90 if the document is produced from proper custody, the
presumption exists about the execution and attestation of that
document. Such presumption is rebuttable. Moreover, though
execution and attestation is presumed, the truthfulness of the
contents therein is a matter of challenge and proof. The
document of 1949 is proved only to the extent that it was
entered into between the parties. However, the contents therein
cannot be believed as true because of the false evidence of Mr.
Ramakant Desai and the inconsistent conduct of the plaintiffs.
If such agreement of grass cutting was entered into in the years
1949 to 1951, then further agreements or any provision
regarding grass cutting should have been produced or brought
on record. The case of the plaintiff was that throughout 30
years he was cultivating para grass which is a special type of
grass, then obviously he must have entered into contracts of
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grass cutting for further 25 years. However, nothing is shown
to that effect. Obviously, it is a sham agreement to meet the
requirement of the time to show starting point of adverse
possession. It is an eyewash.
40. The witness says that he was present at the time of
all the transactions pertaining to said land with Shivram
Shinde. The competency of this witness to give evidence in this
matter is to be questioned. Undoubtedly he is a puppet witness
of present appellant no.2. The presence of witness at all
relevant times should be natural and supported by
corroboration and it should create confidence in the mind of the
Judge to accept his presence as natural. That is not the case.
41. It is the case of Ramakant Desai that Shivram
Shinde wrote a letter to Tahsildar on 20th January, 1978. In
1978 he claimed 35 years of the enjoyment of the land and
constructed several huts on it and he was producing rice. There
were paddy fields, however, he has not produced any evidence
to show that he was cultivating grass and paddy fields in all 25
acres of land. It is not possible for one person to cultivate and
look after 25 years of land without the help of the labourers. If
at all Shivram Shinde was really cultivating the land and
taking the crop of paddy, then it was easily possible to produce
documentary evidence to show sale of paddy crop, accounts
thereof, so also evidence of labourers / some villagers. He has
not produced any evidence of Shinde's financial capacity to
maintain such huge land. The letter dated 20th January, 1978
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(Exhibit 10) is in fluent English and this cannot be written by
Shivram Shinde. Ramakant Desai deposed that he was present
when Shivram wrote letter to Tahsildar. He also mentioned
that Shivram Shinde was illiterate and he could only sign. If
this was so , then should have stated who had written this letter
for Shinde. Nothing is mentioned by him and this shows that
Shivram Shinde was definitely not the author of this letter, but
it is written by somebody else for Shivram Shinde and the
witness has no knowledge about it. The evidence of witness
Desai is a specimen of how the litigant abuses the process of law
and can lie on oath before the Court for his wrongful gain.
42. His deposition in the crossexamination that the
recitals in the affidavit are as per his memory cannot be
believed. This witness was working as a clerk in the police
department since 1945. He gave evidence in the year 2002
when he was 80 years old. In the year 194849 he was
around 27 years of age. It is not acceptable that he could give
the dates of the agreements from 1949, so also the dates of
letter, complaint given by Shivram Shinde and the contents
therein. In the crossexamination, he stated that in 1958 he
resigned from Government service and was looking after the
affairs of Shivram Shinde, Khaskar Bros. Joseph and Ors., on
renumeration, depending on the nature of work. If this was
true, why was his name not mentioned as a witness: He was
not given power of attorney by Shivram Shinde when he filed
the suit, as Shivram Shinde was illiterate. It was necessary for
the legal heirs of Shivram Shinde to come forward and give
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evidence for Shivram Shinde. Similarly, plaintiff no.2 also did
not tender any evidence to show that they were in possession
of the suit land for more than 30 years, as they stepped in the
shoes of Shivram Shinde.
43. If evidence of Mr. Desai is accepted, then anybody
can prove any document by deposing that “though I cannot
identify the signature of thump impression of the person, I
was present at the time of execution” and the documents can
be exhibited. Such evidence can be given, however, it should
be credible to inspite confidence in the mind of a Judge which
can be easily tested on the basis of other circumstances and
then only that document can be accepted as genuine. He has
deposed that he knew Devraj Gundecha who was a person
referred in the Agreement dated 25th April, 1955 (Exhibit7).
He admitted that he did not know the office of Advocate
Talathi and whatever he has deposed in paragraph 13 that he
used to visit the office of Advocate Talathi with Shivram
Shinde is incorrect. He stated that he did not know whether
Tahsildar has rejected Shinde's application for correction of
record of rights. He was given an opportunity to substantiate
his evidence by some documentary proof about his presence at
the time of agreement or any draft of the agreement corrected
by him, however he could not.
5. From the aforesaid ruling, it is clear that the witness should
file examination in chief as contemplated under order 18 rule 4 of the
Civil Procedure Code and it shall be an affidavit and the witness should
state the true facts of whatever he has witnessed. Whether the witness
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has witnessed the incident or the events had taken place in his presence
or not can only be decided or concluded subject to his cross
examination. At this stage, on perusal of the examination in chief of
Ganesh Sharma, it appears that he has deposed regarding the facts
which were in his personal knowledge and he intends to produce on
records certain documents which were in his as well as his father's
possession. It is a matter of record that defendant no.1(a) i.e. Ganesh
Sharma has not cross examined the plaintiff witness no.1. In his reply
to notice of motion on affidavit, the defendant no.1(a) has stated that
he do not have conflict of interest with the plaintiffs. Even, the
defendant no.7(a), (b) ,8 and 10 are also supporting the case of the
plaintiffs as is clear from the reply to this notice of motion.
The next point which is argued by the learned advocate for
defendant no.5 is that if the examination in chief is looked into,
specifically first three paragraphs it is nothing but the repetition of
evidence of PW no.1. Be that, as it may, the defendant no.5 will
certainly get an opportunity to cross examine the witness and even the
witness can be put to answer regarding the facts as to which part of is
affidavit in lieu of examination in chief is in his personal knowledge and
as to which facts, he has deposed on the basis of documents. Only and
only after completion of the cross examination and at the time of final
argument while appreciating evidence itself , it can be decided as how
much weightage is to be given to his evidence. At this stage, when
already the examination in chief is taken on record and as the witness
has deposed that he is deposing as a witness of plaintiff , I do not find
any reasons to discard his evidence. In the ruling cited supra by
advocate for the defendant no.5, those observations were made at the
conclusion of trial. In the said ruling also witness was subject to cross
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examination . Whether the witness is to be believed or not and whether
his evidence is trustworthy or not can only be decided at the final
hearing of the case. At this stage, it only shows that Ganesh Sharma
has filed the affidavit evidence Exhibit16 in his capacity as the witness
for the plaintiff. Therefore, in my considered opinion, the plaintiff has
rightly placed reliance of the case of Vidhyadhar Vs. Manikrao And
Another reported in (1999)3 Supreme Court Cases 573 wherein it
was held by Their Lordship in their judgment in the Apex Court as
follows:
Para 31: “ These two Rules read together clearly
indicate that it is open to a party to summon the witnesses
to the court or may without applying for summons, bring
the witnesses to give evidence or to produce documents.
Subrule(3) of Rule 1 provides that although the name of a
witness may not find place in the list of witnesses filed by a
party in the Court, it may allow the party to produce a
witness though he may not have been summoned through
the court. Rule 1A which was introduced by the Code of
Civil Procedure (Amendment) Act, 1976 with effect from
01/02/1977 has placed the matter beyond doubt by
providing in clear and specific terms that any party to the
suit may bring any witness to give evidence or to produce
documents. Since this Rule is subject to the provisions of
subrule(3) of Rule 1, all that can be contended is that
before proceeding to examine any witness who might have
been brought by a party for that purpose, the leave of the
court may be necessary but this by itself will not mean that
Rule 1A was in derogation of subrule (3) of Rule 1. The
whole position was explained by this Court in Mange Ram
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V. Brij Mohan in which it was held that subrule (3) of Rule
1 and Rule 1A operate in two different areas and cater to
two different situations. It was held: (pp. 4344, para 10)
“There is no inner contradiction between subrule (1) of
Rule 1 and Rule 1A of Order XVI. Subrule (3) of Rule 1
of Order XVI confers a wider jurisdiction on the court to
cater to a situation where the party has failed to name the
witness in the list and yet the party is unable to produce him
or her on his own under Rule 1A and in such a situation the
party of necessity has to seek the assistance of the court
under subrule (3) to procure the presence of the witness
and the court may if it is satisfied that the party has
sufficient cause for the omission to mention the name of such
witness in the list filed under subrule (1) of Rule 1, still
extend its assistance for procuring the presence of such a
witness by issuing a summons through the court or otherwise
which ordinarily the court would not extend for procuring
the attendance of a witness whose name is not shown in the
list. Therefore, subrule (3) of Rule 1 and Rule 1A operate
in two different areas and cater to two different situations”.
32. “In view of the above, even though the name of
Defendant 2 was not mentioned in the list of witnesses
furnished by the plaintiff, he was properly examined as a
witness and his testimony was not open to any criticism on
the ground that he was produced as a witness without being
summoned through the Court and without his name being
mentioned in the list of witnesses.”
33. “The next circumstances relied upon by the High
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Court in discarding the sale deed is that Defendant 2 himself
had given a notice to the plaintiff in which it was set out that
the sale deed was a sham transaction for which the
consideration was not paid. In relying upon this circumstance,
the High Court overlooked the fact that Defendant 2 in his
capacity as a witness for the plaintiff had stated in clear terms
that this notice was issued to the plaintiff at the instance of
Defendant 1. Defendant 2 also stated that the complaint
made by him to the police in that regard was withdrawn by
him. This circumstance, therefore, also could not have been
legally relied upon by the High Court in holding that the full
amount of consideration was not paid”.(emphasis supplied)
6. So also plaintiff has been placed reliance on the case of Sri
Awadh Kishore Sing and another Vs. Sri Brij Bihari Singh; reported
in AIR 1993 Patna 122 ; wherein head note (c) following observations
were made. “ There is no provision to show that a party is debarred
from examining its adversary as a witness on his behalf. A plaintiff can
examine any witness he so likes the witness may be a stranger, may be
a man of his own party or party himself or may be a defendant as a
witness on his behalf, he cannot be precluded from examining him on
the ground that the said defendant has neither appeared in the suit nor
upon appearance filed filed written statement , nor prayer for filing
written statement has been rejected. Therefore , trial court commits
material irregularity in the exercise of jurisdiction in debarring the
plaintiffs from examining defendant as a witness on their behalf and an
order can be interfered in exercise of revisional jurisdiction”.
7. In my opinion, aforesaid two rulings are squarely
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applicable to the present case. Thus by placing reliance on the aforesaid
ruling and considering the nature of the suit and the manner in which
the Ganesh Sharma has filed his evidence as witness of plaintiff, I do
not find any reasons to discard his evidence. Consequently, the notice of
motion needs to be rejected. I, therefore, pass the following order.
ORDER
1. Notice of motion No.2194/18 is rejected
2. Case to proceed further and it be fixed for
admission/denial and marking of documents.
(Kishore M. Jaiswal )
Addl. Sessions Judge,
City Civil & Sessions Court,
Greater Mumbai.
Date:05/10/2018.
Dictated on : 05/10/2018.
Transcribed on : 09/10/2018.
Signed on :
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“Certified to be True And Correct copy of the Original.
Signed Judgment/Order.”
Upload Date 11/10/2018
Time at 10.55a.m.
Name of Stenographer
(Mrs. V.V.Mhatre)
Name of the Judge (With Court
room No.)
H.H.J Shri Kishore M. Jaiswal
(C.R. No.02)
Date of Pronouncement of
JUDGMENT / ORDER
05/10/2018
JUDGMENT / ORDER signed by
P.O.on
10/10/2018
JUDGMENT / ORDER uploaded on 11/10/2018
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