Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2728-19 in S.C. Suit no. 9773/1982 1
H.C.Suit No.1559/1982 Date : 02.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2728 OF 2019
IN
S.C. SUIT NO. 9773 OF 1982
(H.C. SUIT NO. 1559 OF 1982)
(CNR NO.MHCC01 0074842019 )
New Sagar Darshan Cooperative Housing
Society Ltd. .. Plaintiffs
Versus
Apurva Ajay Doshi & Ors. .. Defendants
Appearances :
Adv.Ms. Simantini Mohite a/w Ms. Vaishali i/b M/s.Soloman
and Company for plaintiff present
Adv.Dalal for defendant no.1(a),1(b),2(a) to 6 and 7 present.
Adv. Mr.Parimal Shroff a/w D.V.Deokar a/w Ms. Jaylaxmi
Gaud for defendant no.14(a) and 16 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 02.11.2019
ORDER
1. The defendant no. 14 (a) and 16 have filed instant notice
of motion for grant of permission to cross examined defendant no.1
Mr. Ajit Joshi on such terms and conditions. It is submitted by the
defendant no.14(a) and 16 that the evidence of the plaintiff has been
closed and the evidence on behalf of the defendant no.1 to 7 was
conducted before the commissioner Mr. Asmit Trivedi advocate. The
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NM 2728-19 in S.C. Suit no. 9773/1982 2
H.C.Suit No.1559/1982 Date : 02.11.2019
cross examination of the D.W.1 was held before the commissioner and
concluded on 10th July, 2019. After the conclusion of the cross
examination by the plaintiff, the advocate for the defendant no.14(a)
and 16 requested to the Court Commissioner to schedule the meeting of
cross examination of the DW1 by their advocate. However, the
aforesaid request was objected by the plaintiff. Accordingly, the Court
Commissioner referred the parties to the court for deciding the
aforesaid objection.
2. It is further contended by the defendant no. 14(a) & 16 that they
are claiming through defendant no. 1 to 7. They have also filed Suit
bearing no. 7718 of 1976 not only against the plaintiff herein, but also
against the defendant no.1 to 7, seeking relief against the plaintiff
herein as well as defendant no.1 to 7.
3. It is contended by the defendant no. 14(a) to 16 that this court
has ordered and directed the hearing of the above suit and the suit filed
by the defendant no.14(a) and 16 shall proceed simultaneously. In fact
both suits are listed together for hearing and as such there would be a
common trial of both suits. It is further submitted by the defendant
no.14(a) and 16 that cross examination is voyage to find out the truth.
During cross examination of the witness the ultimate truth will
emerged. The truth of the case of the parties will be brought on the
record only through the documentary evidence and cross examination
of the parties. It is for the court to determine that the whole truth of
entire case of the parties and precisely for that purpose the cross
examination is for. Thus, it is submitted by the defendant that it is only
the cross examination which would determine the adverse interest, if
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NM 2728-19 in S.C. Suit no. 9773/1982 3
H.C.Suit No.1559/1982 Date : 02.11.2019
any between the parties and such adverse interest will be seen by the
court only with regard to the issues in the suit and not for any
extraneous consideration between the parties.
4. It is contended by the defendants that only the cross examination
actually lead will show the adverse interest between the defendant no.1
to 7 and 14(a) and 16. Therefore, in order to determine the entire
truth an opportunity is required to be given to defendant no.14(a) and
16 to cross examine the defendant no.1 Ajit Joshi and then to see the
worth of the cross examination before it can be accepted on record or
not. It is in the interest of the justice and fair play and to have
meaningful hearing and trial of both the suits. Thus, the defendants be
permitted to cross examined DW1. In support of his submission he
relied on the following judgments :
1. Ennen Castings Private Limited (in liquidation), Rep. By
Official Liquidator, Bangalore V/s. M.M.Sundaresh &
Ors., 2003 SCC Online Kar 149.
2. Smt. Taruni Thakur & Ors.V/s. Kamendra Singh & Ors.
2011 SCC Online CHH 38:(2011) 2 Civ LT 2017.
3. Sri Mohamed Ziaulla V/s. Mrs. Sorgra Begum & Anr.,
1997 SCC Online Kar 70.
4. Vidarbha Irrigation Development Corporation V/s. 3rd
Ad hoc Additional District Judge, Nagpur & Ors. in Writ
Petition No. 2390 of 2007 (Bombay High Court, Nagpur
Bench).
5. Vinod S/o Khimjilodaya V/s. Muljibhai s/o. Mauljibhai
Patel & Ors., 2013 SCC Online Bom 704.
6. Tirupati (Mahalaxmi) CHSL V/s. M/s. Gowani Builders
Pvt. Ltd. & Ors. in the case of Notice of Motion No. 736
of 2014 in Suit No. 1304 of 1986 (Bombay H.C.).
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NM 2728-19 in S.C. Suit no. 9773/1982 4
H.C.Suit No.1559/1982 Date : 02.11.2019
5. Per contra the plaintiff opposed the notice of motion by filing
their say. It is contended by the plaintiff that defendant no.14(a) and
16 are the trustees of C.U.Shah Gandhi Education Foundation Trust,
who are claiming rights as a lessee to the suit property, admittedly
through defendant no. 7 and its partner under the alleged indenture of
Exh.15. Therefore, the interest of defendant no.1(a) to 6 are common
with the interest of defendant no.14 (a) and 16. Therefore, they are not
adversary to each other. Therefore, the defendant cannot be allowed to
cross examined DW1. In support of his submission plaintiff’s
advocate relied on the following judgments :
1. Vijaya V/s. Saraswathi, MANU/TN/2264/2008 (Madras
H.C.)
2. Hussens Hasanall Pulavwala V/s. Sabbirbhai Hasanali
Pulavwala & Ors., MANU/GJ/0116/1981 (Gujarat H.C.)
3. Smt. Annapurna Devi V/s. Administrator General U.P.,
2009 (4) AWC 3223 (Allahabad H.C.).
4. Piroja Ghadiali V/s. Pestonji Ghadiali,
MANU/MH/0090/1942 (Bombay H.C.).
6. It is further contended by the plaintiff that as per section 137 and
138 of the Evidence Act, the object of conducting of cross examination
is to test the evidence of an adverse party. If, there is no adverse
interest, there is no need to cross examine. Thus, from the pleading
and evidence led in the present case, the defendant no.14(a) and 16 are
propounding the case of defendant no.1 to 7 and vice versa. Thus, the
defendants cannot be termed as adverse party to each other in the
above suit. Therefore, defendant no. 14 (a) and 16 can not have right
to cross examine the DW1. Hence, plaintiff prayed for dismissal of
notice of motion.
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NM 2728-19 in S.C. Suit no. 9773/1982 5
H.C.Suit No.1559/1982 Date : 02.11.2019
7. I have heard both the sides. Perused the notice of motion, reply,
plaint, written statement and the evidence led before the Court
Commissioner. In the present notice of motion, the main issue is in
respect of whether the codefendant is having rights to cross examine
the defendant. As per section 137 of the Evidence Act, the cross
examination of the witness by the adverse party shall be called his cross
examination. Section 138 of Evidence Act relates with the order of
examination which thus;
“i) witnesses shall be first examined inchief (if the
adverse party so desires) cross examined, then (if the
party calling him so desires )reexamined.”
8. Thus, on perusal of section 138, the adverse party is having a
right of cross examination. He may be defendant and codefendant. In
order to ascertain the party is adverse or contrary to the other it is
either his written statement or the earlier Cross examination /
evidence that has to be gathered whether he is adverse party.
9. In the instant case, on perusal of written statement filed by the
defendant no.1(a), 6, 14(a) and 16, it appears that the defendant
no.14(a) and 16 are claiming right, title and interest as a lessee in a suit
property through defendant no.7. It is specific case of the plaintiff that
they are the owners of the suit property however, by conveyance deed
dated 29th June,1966 (Exh.23) executed between the earstwhile owner
the defendant no.7 and the plaintiff Society purchaser therein, the
entire larger property admeasuring about 7758 sq. mtr. the building
standing thereon including the school building was conveyed and
transferred to plaintiff’s society. However, in the year 1976, for the first
time the plaintiff society learned that the lease deed (Exh.15) is
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H.C.Suit No.1559/1982 Date : 02.11.2019
executed between the then partners of defendant no.7, defendant no.1
to 8 as lessors and defendant no.10 to 14 as lessee for taking on the
lease of the school property. The said indenture of lease was executed
behind back of the plaintiff’s society and the society never informed nor
they were made aware about the execution or existence of alleged
indenture of lease dt.23th April,1966. Thus, on the perusal of the entire
material including the evidence led before the court commissioner, I do
not find that the interest of defendant no.1 to 7 is adverse to the
interest of the defendant no. 14(a) and 16. Thus in my view, the
defendants are not adversary to defendant no.1 to 7. Hence, defendant
no. 14(a) and 16 have no right of cross examination. Thus, in view of
the above facts, I do not find any substance in the instant notice of
motion and same needs to be rejected. Thus, I proceed to pass the
following order :
ORDER
i) Notice of motion no. 2728 of 2019 is hereby stand rejected.
ii) The deft no. 14(a) and 16 bear the cost of notice of motion
iii) The notice of motion disposed of accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 02.11.2019 Greater Bombay.
Directly dictated on computer : 02.11.2019
Typed on : 02.11.2019
Draft Submitted on : 02.11.2019
Checked on : 06.11.2019
Signed on : 06.11.2019
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NM 2728-19 in S.C. Suit no. 9773/1982 7
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
08/11/2019 at 5.00 p.m. (Mrs. Pushpa Wagh)
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
04/11/2019
JUDGMENT/ORDER signed by P.O.
on
06/11/2019
JUDGMENT/ORDER uploaded on 05/11/2019
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