Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2985 OF 2019
IN
S.C. SUIT NO.7577 OF 1981
CNR NO.MHCCO10082012019
M/s.Sanghvi Constructions Co. ..Plaintiff
V/s
Bhagwandas Ramdas & ors ..Defendants
Ld. advocate Dubhsah for the plaintiff
Ld. advocate Narayanan for all defendants except deft no.3(a)
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 20/08/2019
ORAL ORDER
(1) This Notice of Motion is tendered by the plaintiff for
recalling PW1(Chandrakant Maganlal Sanghvi) and to permit
the plaintiff to reexamine him. It is the submission of the
plaintiff that during the cross examination, the statement of
PW1 was recorded ,” It is correct to say that I never intended
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to proceed with the development of the suit property
therefore I never met with tenants and occupants of the suit
property.”
2) The plaintiff submits that to the best of his knowledge, he
did not make any such statement. He submitted that it is correct
that he did not meet the tenants and occupants of the suit
property but it is not correct that plaintiff did not intend to
develop the suit property. It has been the stand of the plaintiff
that suit property is required to be developed and plaintiff has
produced documents to that effect. He would submit that
without prejudice and assuming that such answer given by him
in cross examination, he wish to give explanation to the said
statement in order to remove the discrepancy and ambiguity.
No prejudice would be caused to the defendants and hence
prayed for allowing the notice of motion.
3) The defendants have not filed reply but has filed affidavit
of defendant nos.6 and 10. They submitted that the said
statement was made by PW1 during cross examination. The
advocate for the plaintiff Mr.Wasim Shaikh confirmed the
closure of plaintiff witness No.1 and therefore the Court has
discharged PW1. The approach of the plaintiff appears to fill
up the lacuna.
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4) Ld. Counsel for the plaintiff submitted that no longer the
scope of reexamination is restricted to removal of discrepancy
and ambiguity but it can be stretched for calling explanation of a
fact. He placed reliance upon the judgment of Hon'ble Supreme
Court in the case of Rammi @ Rameshwar etc. V/s State of
Madhya Pradesh, 1999(3)ACR 2183(SC). He submitted that
the same view is reiterated in the case of Vinod Kumar V/s
State of Punjab of Hon'ble Supreme Court, 2015(2) ACR
1431(SC).
5) Ld. Counsel for the defendants submitted that the
admission given by PW1 cannot be taken away by extending
the scope of reexamination. He placed reliance upon the
following judgments:
(1) Gopal s/o Sakaru Binjewar and ors V/s The State of
Maharashtra, Hon'ble Bombay High Court(Nagpur bench),
Criminal Writ Petition No.427 of 2007, decided on
07/09/2007.
(2) Indian Chain Private Ltd V/s Mr.Ajit Nain and anr, of
Hon'ble Supreme Court, 2013 SCC Online Cal 16931
(3) Vadiraj Naggapa Vernekar (D) Through Lrs.V/s Sharad
Chand Prabhakar Gogate of Hon'ble Supreme Court,
Manu/SC/0448/2009.
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(4) Godrej Consumer Products Ltd. V/s P.C.Chandra Gems
Pvt.Ltd and anr, 2017 SCC online Cal. 745.
6) I had considered the position of law as critilized in the
above said judgments. No doubt the witness can be called for re
examination, for getting explanation. In the instant case, PW1,
initially comes with the case that to the best of his knowledge,
he did not make the said statement. This statement of PW1 on
oath is serious. Ld. Counsel for PW1 was present. In his
presence, evidence was recorded. The Ld. Counsel for the
plaintiff has not filed affidavit of the advocate present to show
that no such statement was made by witness. The affidavit of
defendant nos.6 and 10 reflect that the other partners i.e.
brother of PW1 was also present in the Court. It appears that at
that moment none from the side of the plaintiff objected about
making of such statement. The cross examination of PW1 was
completed on 17/07/2019 and the matter was adjourned for
further evidence on 24/07/2019. The evidence was collected by
the plaintiff on 18/07/2019. None prevented the plaintiff to
collect the evidence on the very same day. On 24/07/2019, no
such application was filed for reexamination. On 24/07/2019
the matter wass further adjourned to 29/07/2019 for further
evidence of plaintiff. From this, it appears that present notice of
motion is after thought. The admission in the cross examination
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cannot be nullified by reexamination. The only reservation of
the plaintiff is to part of the sentence i.e. I never intended to
proceed with the development of the suit property”.... But, it
appears the answer was in continuity the question put forth.
The statement made by the witness is self explanatory. The
witness is not an independent witness but he is a party and
contesting the suit since 1981. This also cannot be ignored. By
this notice of motion, the plaintiff wish to wash out the
admission given by PW1 and the same is out of the ambit and
scope of reexamination. Hence, this notice of motion needs no
consideration. Accordingly, it is expedient to pass following
order:
Order
1. Notice of Motion No. 2985/2019 stands rejected.
2. Costs in the cause.
20/08/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 20/08/2019
Transcribed on : 23/08/2019
Signed on : 31/08/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
31/08/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
20/08/2019
Judgment and order signed by
P.O.
31/08/2019
Judgment/order uploaded on 31/08/2019
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