Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2604-2019 in S.C. Suit no.9514-99
H.C.Suit No. 5649 of 1999
1 Date :16.03.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2604 OF 2019
IN
S.C. SUIT NO. 9514 OF 1999
(H.C.SUIT NO. 5649 OF 1999)
(CNR NO.MHCC01-007154-2019)
Jiledar Ramraj Jaiswar .. Plaintiff
Versus
Rambahadur Singh .. Defendant
Appearances :-
Ld. Adv. V. R. Tripathi for plaintiff.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 16.03.2020
ORDER
1. The plaintiff has filed instant Notice of Motion for allowing
him to file his additional affidavit of examination-in-chief.
2. It is contended by the plaintiff that the defendant in his
Written Statement come out with the new case that the plaintiff
has executed an affidavit dated 19.10.1997, thereby confirming
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NM 2604-2019 in S.C. Suit no.9514-99
H.C.Suit No. 5649 of 1999
2 Date :16.03.2020
the alleged sale of the suit premises to the defendant. The plaintiff
while dictating the affidavit of his evidence, in respect of aforesaid
allegations, relied on the steno who was expert. However, during
cross-examination conducted by the plaintiff’s advocate on the
aforesaid denial, the advocate for defendant objected on the
ground that there is no pleading, therefore, the plaintiff realized
that he has failed to deny the aforesaid fact. Hence, he filed
instant Notice of Motion for allowing him to file additional
affidavit of evidence. Since, his affidavit of evidence does not
contains his denial about the execution of document dated
27.10.1997.
3. The Notice of Motion is opposed by the defendant by filing
written objection. It is contended by the defendant that the
evidence of both the sides has been closed and thereafter, the
plaintiff filed instant Notice of Motion for recalling or re-opening
of evidence of his witness which is not permissible under law. It is
further contended by the defendant that the denial mentioned by
the plaintiff in the additional affidavit of evidence is not required
under law to be produced before this Court by way of an evidence.
The defendant also denied the fact that he has objected during
cross-examination to the defendant in respect of his contents of
Para No. 21 and 22 of his Written Statement. Hence, the
defendant prayed for dismissal of Notice of Motion.
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H.C.Suit No. 5649 of 1999
3 Date :16.03.2020
4. Heard both the sides. Perused Notice of Motion, reply as
well as rejoinder. The plaintiff filed instant Notice of Motion for
recalling / re-opening of his witness on the ground that he has
failed to give denial in respect of affidavit dated 19.10.1997. It is
contended by the defendant that under Order 18 Rule 17 of CPC,
recalling of the witness is not permissible. The aforesaid provision
is merely an enabling provision for convenience of the Court. It
does not permit party to re-examine any witness to fill up the
lacuna in the case. In support of his submission he has relied on
the judgment of
Hon’ble Punjab and Hariyana High Court reported
in AIR 2004 P & H 377.
5. On perusal of the Notice of Motion, it appears that the
plaintiff wanted to file additional affidavit of examination-in-chief
by recalling his witness. Thus, the plaintiff filed the aforesaid
application under Order 18 Rule 17 of CPC which read as under :
Order 18 Rule 17 : “Court may recall and examine the
witness. The court may at any stage recall an any witness
who has been examined and may put such question to him
as the Court thinks fit.”
In the present case, the plaintiff wanted to give denial by way of
additional affidavit.
The Hon’ble Bombay High Court in case of
Banganga Co-operative Housing Society Ltd. V/s. Mrs. Vasanti
Gajanan Nerulkar reported in 2015 SCC Online Bombay 3411,
have held that the material i.e. clearly irrelevant or hearsay, in the
nature of legal submissions, arguments in the form of prayers,
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H.C.Suit No. 5649 of 1999
4 Date :16.03.2020
prayers or reliefs or denials of the kind in the affidavit of
examination in chief have no place. Thus, In my view, the
additional affidavit which the plaintiff wanted to file in respect of
the denial of execution of any affidavit is not all permissible.
6. It is admitted fact that the evidence of both the sides has
been closed. Thereafter, the plaintiff filed the instant application
under Order 18 Rule 17 of CPC for recalling of witness which is
not permissible at all. In view of the judgment of
Hon’be Apex
Court in case of Vadiraj Nagappa Vernekar V/s. Sharadchandra
Prabhakar Gogte 2009 (4) SCC 410. The Hon’ble Apex Court in its
para 25, 28 and 29 is thus held as under :
“Para No. 25 - In our view, though the provision of Order 18
Rule 17 of CPC, have been interpreted to include the
applications to be filed by the parties for recalling of
witnesses, the main purpose of the said rule is to unable
the court while trying the suit to clarify any doubts which it
may have with regard to the evidence lead by the parties.
The said provisions are not intending to be used to fill up
omission in the witness who has been examined.”
“Para No. 28 - The power under the provisions of Order 18
Rule 17 of CPC is to be sparingly exercised and in
appropriate cases and not as a general rule, merely on the
ground that his recall and re-examination would not cause
any prejudice to the parties that is not the scheme or
intention of the Order 18 Rule 17 of the CPC.”
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“Para No. 29 - It is now well settle that the power to recall
any witness under Order 18 Rule 17 of CPC can be
exercised by the Court either on its motion or an
application filed by any of the parties to the suit, but as
indicated herein above such power is to be invoked not to
fill up of the lacuna in the evidence of witness which has
already been recorded but to clear any ambiguity that may
have arisen during course of examination.”
7.
The Hon’ble Apex Court in case of K.K. Velusami V/s. N.
Palanisami 2011 (11) SCC 275. Even after considering the
principals laid down in
Vadiraj Nagappa Vernekar (Supra) and
taking note of Section 151 of CPC, the Hon’ble Apex Court
concluded in the interest of justice and to prevent abuse of process
of the Court, the trial court is free to consider whether it was
necessary to re-open the evidence and if so, in what manner and to
what extent. Further, it is observed that the evidence should be
permitted in exercise of its power under Section 151 of CPC. The
Hon’ble Apex Court in the aforesaid case laid down following
principals which are enumerated as under :
Para No. 19 – We may add word of Caution. The power
under Section 151 of CPC or Order 18 Rule 17 of CPC is not
intended to be used routinely, merely for the asking. If, so
used it will defeat the very purpose of various amendments
to the Code to expedite trials, but where the application is
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H.C.Suit No. 5649 of 1999
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found to be bonafide and where the additional evidence,
oral or documentary, will assist the Court to clarify the
evidence on issue and will assist in rendering the justice
and the Court is satisfied that non production earlier was
for valid and sufficient reasons, the Court may exercised its
discretion to recall the witness or permit the fresh evidence.
But, if it does so, it should ensure that the process does not
become the protracting the Court should firstly award
appropriate cause to the other party to compensate for the
delay. Secondly, the Court should take up and complete the
case within a fixed time schedule, so that delay is avoided.
Thirdly, if the application is found to be mischievous or
frivolous or to cover up negligence or lacuna, it should be
rejected with heavy cost.
8. On this principal, if, I perused the case of the plaintiff, it
appears that he wanted to give only denial by way of additional
Affidavit of evidence which is not permissible in view of the
Judgment of Banganga Co-operative Housing Society Ltd. (Supra).
In my view, there is no substance in the application. The aforesaid
additional evidence does not assist the Court to clarify the
evidence on the issue nor will assist in rendering the justice.
Hence, In my view, application is mis-concieved and same deserves
to be rejected. Thus, I proceed to pass the following order :
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NM 2604-2019 in S.C. Suit no.9514-99
H.C.Suit No. 5649 of 1999
7 Date :16.03.2020
ORDER
1. Notice of Motion No. 2604 of 2019 is hereby rejected.
2. Notice of Motion No. 2604 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 16.03.2020 Greater Bombay.
Dictated on : 16.03.2020
Typed on : 16.03.2020
Draft Submitted on : 16.03.2020
Checked on : 08.06.2020
Signed on : 08.06.2020
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NM 2604-2019 in S.C. Suit no.9514-99
H.C.Suit No. 5649 of 1999
8 Date :16.03.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
08/06/2020 at 4.30 p.m. (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
16/03/2020
JUDGMENT/ORDER signed by P.O.
on
08/06/2020
JUDGMENT/ORDER uploaded on 08/06/2020
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