Final Order 1

Order Details: Chamber summons
Pdf Text: 1Ch/S No.1081/2018 in Suit No.4536/09
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO. 1081 OF 2018
(CNR NO. MH CC010076292018)
IN
S.C.SUIT NO. 4536 OF 2009
(CNR NO. MH CC010046802009)
Bonny Charlie Baptista ... Plaintiff
Versus
1. Sushant V. Parmar and Anr. ... Defendants
Adv. Mr. Virendra Tripathi for plaintiff.
Adv. Ms. Krutika Kothari for defendant no. 1.
Adv. Mr. Saket Chavan for defendant no. 2.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 18th DECEMBER 2018
O R D E R
This Chamber Summons has been taken out by defendant
no. 1 for deleting or discarding averments made in para no. 3 of the
affidavit of evidence dtd 16.07.2015.
2. It is the case of the defendant no. 1 that the plaintiff has
filed affidavit of evidence and in para no. 3, he has stated “ I say that
made part payment to Mr. Stanley Thomas Gonsalves of Rs. 4,00,000/
I(Rupees Four Lakhs only) in pursuance thereof. I say that the original
receipt is in possession of the defendant no. 1 which was handed over
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to him by me as demanded by him. I say that I had taken a colour xerox
of the payment receipt. It bears the signature of Mr. Stanley Thomas
Gonsalves, I identify the his signature as it has been signed by him
before me and in the presence of one witness Mr. Rajesh P. Tripathi, I
identify the his signature as it has been signed by him in my presence,
the contents are true and correct and therefore same be exhibited in
evidence and therefore exhibited as secondary evidence.”
3. It is averred that the said statement were never made
earlier and it has been introduced for the first time in the evidence.
Unless the case is pleaded in the plaint, party is debarred for putting the
case in the evidence. The plaintiff had amended plaint in January 2010
and had opportunity for introducing whatever case he desires to put in
evidence, to be put in the pleadings. Hence, prayed for discarding the
said evidence stated in affidavit of examination in chief.
4. The plaintiff has filed reply and contented that the
defendants have no right to suggest to the court or the plaintiff as to
what evidence should be adopted by the plaintiff. It is for the court to
decide at the time of final arguments of the suit, as to what is to be
weighed and/or accepted or discarded from the evidence of the plaintiff
or defendants, for the purpose of deciding the suit. Statement made by
the plaintiff in his evidence is true and correct and forms part of the
plaint and evidence of the plaintiff. It is denied that the said statements
in the evidence affidavit was made for the first time in the evidence
with no pleadings in the plaint. Hence prayed for dismissal of chamber
summons.
5. Heard Learned advocate for defendant no. 1 and Learned
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advocate for the plaintiff. Perused pleadings. Perused order passed
below exh. 8 on 12.11.2016. It appears that the plaintiff has sought
permission to lead secondary evidence in respect of documents
mentioned in exh. 8 and this court has allowed exh. 8 application and
granted permission to the plaintiff to lead secondary evidence in respect
of the documents except document at Sr.4. It appears that in the said
application, document referred in para no. 3 of affidavit of examination
in chief has been mentioned at Sr. 1.
6. It appears that in the pleadings the plaintiff has stated in
respect of acquiring right, title and interest from 'Stanley Thomas
Gonsalves and Other' in the year 2002. Accordingly in respect of the
said acquired rights, the plaintiff has stated in evidence para no. 3
regarding the part payment made by the plaintiff to Mr. Stanley Thomas
Gonsalves. Thus further it appears that vide exh. 8, even the plaintiff
has obtained permission to lead secondary evidence in respect of the
receipt of payment made by the plaintiff to said Mr. Stanley Thomas
Gonsalves. It seems that the plaintiff has made even compliance of
section 66 of the Indian Evidence Act in respect of the said receipt.
Thus, acquisition of rights by way of agreement in the year 2002 from
Mr. Stanley Thomas Gonsalves has been pleaded in the plaint.
Acquisition of right in the property by way of agreement when pleaded,
it is acceptable that the plaintiffs have impliedly pleaded acquisition of
rights on payment of consideration amount. Thus it appears that the
plaintiff has deposed accordingly in the evidence in respect of payment
and receipt.
7. Thus, Learned advocate for defendant no. 1 has placed her
reliance in “SU no. 3598/1996, Harish Loyalka and Anr. V/s Dileep
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Nevatia and Ors, dtd 7.04.2014” with respect principle held is
guideline.
8. In view of above facts of the present suit, objection raised
by defendant no. 1 in respect of part of evidence in para no. 3 of
affidavit of examination in chief of PW1 has no merits and at this stage,
said part of evidence is not justifiable to be ignored while recording
evidence of the witness. Defendant no. 1 has every opportunity to cross
examine the witness on the said document. The evidentiary value of the
said document can be decided on merits at the time of final arguments.
Thus, in the light of my above discussion, chamber summons is to be
dismissed. With this I proceed to pass the following order.
O R D E R
1. Chamber Summons No. 1081 of 2018 is hereby dismissed with
costs.
2. Accordingly Chamber Summons no. 1081 of 2018 stands
disposed of.
(S. P. PONKSHE)
Judge,
Date: 18/12/2018. City Civil Court,
Gr. Bombay.
Dictated on : 18/12/2018
Transcribed on : 18/12/2018
Signed on : 20/12/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24/12/2018 At 2.40 p.m. MRS. VARSHA PAHURKAR
UPLOAD DATE AND TIME NAME OF COURT TYPIST
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
18/12/2018
Judgment/Order signed by P.O. on 20/12/2018
Judgment/Order uploaded on 24/12/2018
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