Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2275 OF 2018
IN
SUIT NO.2941 OF 2011
Mr.Pradeep Dattaram Padwal & ors. ...Plaintiffs.
V/s.
Mr.Dattaram Ramchandra Padwal & ors. ...Defendants.
Appearances:
Ld. Adv Ms.J.P. Thakkar for plaintiff.
Ld. Adv. Mr.S.S. Redekar for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 13th November,2018
ORDER
By way of this Notice of Motion plaintiff No.2 sought permission
to lead evidence as PW5 in the suit as per O.XVIII R.3A of C.P.C.
2. In supporting affidavit to the notice of motion plaintiff No.2 Priya
Padwal submitted that, they have filed this suit against defendant and
now tendered examinationinchief and documents on 11.06.2018,
which was objected by defendants. Therefore, it is necessary to allow
her to examine as PW5 to lead evidence and to produce documents
under O.XVIII R.3A of C.P.C. Thereafter, they have taken out notice of
motion. Plaintiff No.2 submitted that, she is residing in the suit
premises since date of her marriage till date and are in possession along
with plaintiffs and defendants. There are documents such as LPG Gas
receipts, election identity card, letter addressed to concern competent
MHCC01-007345-2018
-- 1 of 6 --
NM 2275/2018 .. 2 .. Suit No.2941/2011
authority to her at he above address to show that her husband's name
for eligibility of transit accommodation and permanent alternate
accommodation in lieu of demolition of old existing residence tenanted
premises bearing No.47, 2nd floor, Bldg.No.3, Wani ChawlC, N.M. Joshi
Marg, Mumbai400 011. Therefore, all these documents are necessary
to be placed on record. Otherwise plaintiffs will suffer irreparable loss
and injury which cannot be compensated in monetary terms and
therefore, notice of motion be made absolute.
3. The present notice of motion strongly objected on behalf of
defendants by filing replyaffidavit of defendant No.3 Ujwala Padwal
and submitted that, plaintiffs have examined PW1 and also examined
three more witnesses on the same count. At that time no leave was
obtained from this Court that plaintiff No.2 is also willing to lead
evidence and therefore, to fill up lacunae plaintiff No.2 wants to lead
evidence, which cannot be permitted under the mandate of O.XVIII
R.3A of C.P.C. As such, notice of motion needs to be rejected with
heavy costs.
4. Heard learned Advocate for plaintiff and learned Advocate for
defendant. Perused the submissions of both the sides.
5. No doubt, mandate under O.XVIII is highlighted by Hon.High
Court in the case of SANJAY NARAYANRAO BARDE and another vs.
VIMAL KESHAORAO BAIRAM and others, 2000 (2) Mh.L.J.386,
wherein it has been observed that,
“12. Thus, having gone through all these rulings, the following
position emerges :
-- 2 of 6 --
NM 2275/2018 .. 3 .. Suit No.2941/2011
That, Rule 3A of Order 18 of the Code is directory in nature and
that the only mandatory provision it incorporates is to the extent of
obtaining permission of the Court. The normal rule laid down is that
the party wanting to examine himself should examine first before any
witness is examined. This rule can be deviated only with the permission
of the Court. Such permission of the Court, it is desirable, should be
obtained before any witness is examined, but such is not the mandate.
Such permission can be obtained even at a later stage. In addition to
the aforesaid observations made by the learned Judges of different High
Courts it can be deduced that by enacting the provision of the Rule 3A,
the Legislature had struck the balance between the right of the party to
lead evidence as it wants and the misuse of that right in filing up the
lacuna occurring in the evidence already recorded. This balance has
been achieved by making it mandatory for the party wanting to deviate
from the general rule to obtain permission of the Court which would
ensure that the party is not misusing the right and would not use that
right for filing up the lacuna.”
Further, learned counsel for defendant relied upon the authority
of Hon.Jharkhand High Court in the case of Krishna Nand Tripathy v.
Alok Chaurasiya, AIR 2017 JHARKHAND 22. Wherein in election
petition the question of leading evidence under O.XVIII was ascertained
and Hon.High Court has been observed that,
“...that the Order XVIII, Rule 3A of the Code of Civil Procedure is not
an absolute bar for examination of party to a suit at a later stage. There
is always a discretion of the Court to allow the party to be examined at
the later stage. Even Section87 of the Representation of the People Act
only states that the procedure applicable under the Code of Civil
Procedure for the trial of the suits shall be followed by the High Court
while trying an election petition, as nearly as may be. There is no
-- 3 of 6 --
NM 2275/2018 .. 4 .. Suit No.2941/2011
requirement of strict adherence to the provisions of CPC, while trying
an election petition.”
6. Both authorities is in directory in nature under O.XVIII. But in
view of the fact of this case admittedly, plaintiff No.1 is husband of
plaintiff No.2 already tendered his chiefinaffidavit and thereafter, also
examined more three witness in support of their case by producing
documents. During entire course of recording evidence plaintiff did not
take leave of the Court that plaintiff was willing to examine one more
witness i.e plaintiff No.2, after recording the evidence of witnesses.
Under O.XVIII R.3A it is mandatory to obtain prior leave of the Court
to tender the evidence of plaintiff, if they willing to do so. But after
recording evidence of four witnesses now to fill up lacunae and produce
the documents, which are pertaining to the whatever circumstances
already placed on record plaintiffs wanted to lead the evidence; which
is not permissible. Therefore, I have no hesitation to discard the relief
prayed for by plaintiff No.2 to lead the evidence in support of their
claim as put forth. Whatever documents and evidence are brought on
record it can be considered at the proper stage, but to fill up lacunae,
which was kept blank during the crossexamination of the witnesses
already examined by plaintiffs, later on such prayer to examine another
witness is clearly afterthought to washout entire admissions, which will
cause serious prejudice to defendants. In such circumstances, I have no
hesitation to dismiss the prayer of permission to be granted later on to
plaintiffs to examine plaintiff No.2 as PW5 under the mandate under
O.XVIII R.3A of C.P.C. Hence, notice of motion needs to be rejected.
In such circumstances, it is proper to direct parties to bear their costs
and hence, I proceed to pass the following order :
-- 4 of 6 --
NM 2275/2018 .. 5 .. Suit No.2941/2011
O R D E R
1. Notice of Motion No.2275 of 2018 in Suit No.2941 of 2011
stands rejected.
2. Parties to bear their own costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:13/11/2018 City Civil Court, Gr. MUMBAI
Dictated on : 13.11.2018
Transcribed on : 14.11.2018
Signed on : 14.11.2018
kps/
-- 5 of 6 --
NM 2275/2018 .. 6 .. Suit No.2941/2011
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
14.11.2018 at 5.32 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 13.11.2018
Judgment/order signed by P.O. on 14.11.2018
Judgment/order uploaded on 14.11.2018
-- 6 of 6 --