Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.3196/2019
in S.C. Suit No.2420/2008
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.3196 of 2019
(CNR NO. MH CC010087082019)
In
S.C. SUIT No.2420 OF 2008
Shri Dilip s/o Shankar Kumbhar ….Plaintiff
V/s.
The Chief Officer, Slum Rehabilitation Authority & Ors.
....Defendants
Appearance:
Mr. Rajesh Singh, Advocate for the plaintiff.
Mr. D. K. Trivedi, Advocate for the defendant No.1
Mr. Sandeep Bane, Advocate for the defendant No.4
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 08 th January, 2020.
ORDER
1. By this notice of motion, plaintiff has prayed for recalling the
order dated 28.01.2019 passed in the suit and for allowing plaintiff to
lead further evidence.
2. In support of notice of motion, affidavit is filed by PW2 Mr.
Dilip S. Kumbhar and it is averred that vide order dated 03.07.2018
witness summons were issued to the Deputy Collector (Encroachment),
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2 Notice of Motion No.3196/2019
in S.C. Suit No.2420/2008
Dharavi Division and Rationing Officer, Parel, Mumbai. Though the
witness summons were duly served, the concerned officers failed to
appear on the fixed date. Therefore, the matter was adjourned on
03.09.2018 and 09.10.2018. As per the information, the representative
of the Rationing Officer was present on 03.09.2018 but he left the
premises of the court as the matter was not taken up for hearing. Since
the witnesses remained absent on 07.01.2019 and 28.01.2019, order
dated 28.01.2019 for closing evidence of plaintiff was passed. On
23.04.2019, the evidence of other defendants were also closed.
3. It is further averred that documents filed by the plaintiff and
his witnesses are material for adjudicating the issues involved in the suit
and they are required to be exhibited by examining concerned witnesses.
For these reasons, it is prayed that the notice of motion may kindly be
made absolute.
4. In affidavitinreply by defendant No.4, it is averred that
notice of motion is nothing but fraudulent attempt on the part of plaintiff
to mislead the Court. The plaintiff does not want to complete hearing of
the suit on merit. The suit was earlier dismissed on 12.02.2015 and
thereafter it was restored. On 20.02.2017, plaintiff filed evidence closing
pursis and thereafter taken out notice of motion No.2931/2017 for
setting aside the order dated 20.02.2017 for closure of evidence. Vide
order dated 06.02.2018 the said notice of motion was allowed and on
19.06.2018 application Exh69 filed by the plaintiff was partly allowed
vide order dated 03.07.2018 for issuance of witnesses summons. Now
the matter is kept for final argument and present notice of motion is filed
after eights months when evidence of all the defendants has been closed.
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in S.C. Suit No.2420/2008
For all these reasons, it is prayed that the notice of motion may kindly be
dismissed with cost.
5. Heard learned Advocate for plaintiff, defendant No.1 and
defendant No.4. It is vehemently submitted by learned Advocate for
plaintiff that for proving the documents tendered by plaintiff, further
evidence of witnesses is necessary for just decision of the matter. The
copy of roznama annexed with affidavit in support, reflects that on
25.06.2018, the application for issuance of witness summons was filed by
plaintiff and it was allowed on 03.07.2018. No prejudice will cause to
other side, if notice of motion is allowed. Thus, it is prayed that notice
of motion may kindly be made absolute.
Per contra, learned Advocate for defendant No.1 submitted that as
matter of right, plaintiff can not claim to lead further evidence when his
evidence was closed by order dated 28.01.2019. No justifiable reason is
mentioned in affidavit in support of the notice of motion as to for what
purpose the evidence of further witnesses is relevant. It is further
submitted that to wipe out the effect of cross examination of plaintiffs
witnesses, present notice of motion is taken out which is liable to be
dismissed with cost.
Learned Advocate for defendant No.4 submitted that on
20.02.2017, the plaintiff has closed his evidence by filing pursis and later
on had taken out notice of motion for setting aside the said order. In
spite of availing various opportunities, as the plaintiff failed to lead
further evidence, order dated 28.01.2019 was passed. Therefore, it is
prayed that the notice of motion may kindly be dismissed with cost.
6. Record shows that the plaintiff closed his evidence on
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in S.C. Suit No.2420/2008
20.02.2017 by filing pursis and the matter was kept for the evidence of
defendants. However, the plaintiff had taken out notice of motion No.
2931/2017 which was allowed on 06.02.2018. The application of
issuance of witness summons by plaintiff was allowed on 03.07.2018. It
is the contention of plaintiff that on 03.09.2018 Rationing Officer was
present but he left the Court as the matter was not taken up for hearing.
In this respect, the copy of roznama dated 03.09.2018 filed on behalf of
plaintiff reflects that there is no mention of presence of Rationing Officer
on the relevant date nor the presence of plaintiff and his Advocate was
recorded.
7. The suit is filed for the relief of declaration that plaintiff is in
exclusive use, occupation and possession of suit premises and for setting
aside the supplementary AnnexureII dated 22.12.2005 issued by
defendant No.1 for the eligibility of defendant No.4 in respect of the suit
premises. Under such circumstances, in the interest of justice,
opportunity needs to be granted in favour of plaintiff to lead further
evidence in support of his contention. Though, it is expected that the
trial of old suits needs to be expedited, it can not be ignored that in order
to support contentions of parties, it is justifiable to grant an opportunity
for tendering further evidence, if it requires, considering the reliefs
sought in the suit. However, it is also noticed that earlier plaintiff has
closed his evidence by filing pursis and against it had taken notice of
motion for setting aside the said order and for tendering further
evidence. In spite of availing various opportunities, the plaintiff failed to
take further steps in order to secure presence of concerned witnesses.
Therefore, for the said default and delay caused on behalf of plaintiff,
defendant No.1 and defendant No.4 should be compensated sufficiently
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in S.C. Suit No.2420/2008
in terms of money.
8. Learned Advocate for plaintiff has cited the Judgment in the
matter of M/s. Foodworld Super markets Ltd. and anr. V/s. H. Sujan
Singh and Ors. in AIR 2009 SC (Supp) 2249.
It has been observed by Hon'ble Court that :
“Order refusing to recall plaintiff is improper when reasonable
explanation was offered by defendant for his absence.”
In that case the plaintiff filed his affidavit by way of evidence and
the matter was adjourned twice for cross examination of plaintiff. As
counsel of defendant was not present before the Court when the matter
was called out, the evidence of plaintiff was closed and it was posted for
evidence defendants. Therefore, the facts of the said case being
different, it is not applicable to the present set of facts.
9. Learned Advocate for plaintiff has cited the Judgment in the
matter of Suresh Kumar V/s. Baldev Raj in AIR 1984 Delhi 439.
It has been observed by Hon'ble Court that :
“ The discretion vests in the Court to recall a witness who has been
examined earlier at any stage of the suit which would evidently
mean any stage before the judgment is pronounced. So, the
discretion can be exercised even after evidence of the parties has
concluded, of course, it must be exercised judicially and on well
accepted judicial principles and not arbitrarily or capriciously. The
stage the case alone should not weigh with the Court to such an
extent as to overshadow the other aspects of the matter.”
In that case after the closure of evidence by both the parties when
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in S.C. Suit No.2420/2008
the matter was posted for final argument, it was realized by
petitioner/plaintiff that he had not filed original documents and the
photostat copies filed by him were not admissible as secondary evidence .
In that circumstances, he moved application for recalling the witness to
prove the documents. In the case in hand, the application of plaintiff
for issuance of witness summons was allowed and plaintiff failed to take
further steps for securing presence of witnesses. Therefore, with due
respect that the observations laid down in the cited Judgment, those are
not applicable to the present set of facts.
10. Learned Advocate for plaintiff has cited the Judgment in the
matter of K. K. Velusamy V/s. N. Palanisamy in AIR 2011 SCW 2296.
It has been observed by Hon'ble Court that :
“There is no specific provision in the Code enabling the parties to
reopen the evidence for purpose of further examinationinchief or
crossexamination. In the absence of any provision providing for
reopening of evidence or recall of any witness for further
examination or crossexamination, for purposes other than
securing clarification required by the Court, the inherent power
under S.151 of the Code, subject to its limitations, can be invoked
in appropriate cases to reopen the evidence and/or recall witnesses
for further examination. This inherent power of the Court is not
affected by the express power conferred upon the Court under O18,
R17 of the Code to recall any witness to enable the Court to put
such question to elicit any clarifications.”
The observations in the cited Judgment are squarely applicable to
the present case. In the case in hand, plaintiff has shown justifiable
reasons to reopen the evidence for proving certain documents which are
already tendered on record. Resultantly, I pass following order.
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in S.C. Suit No.2420/2008
ORDER
1) Notice of Motion No.3196/2019 is made absolute in terms of
prayer clause (a) subject to payment of cost of Rs.5,000/ (Rs. Five
Thousand Only) each to defendant Nos. 1 and 4 to be paid on next
date without fail.
2) Payment of costs is condition precedent and failure to which,
notice of motion will stands dismissed automatically.
3) Defendants are at liberty to lead evidence after closing of evidence
by plaintiff.
4) Notice of Motion No.3196/2019 stands disposed off.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 08/01/2020
Dictated on : 08.01.2020
Transcribed on : 08.01.2020
Signed on : 09.01.2020
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in S.C. Suit No.2420/2008
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
09.01.2020 03.00 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 08.01.2020
Order signed by P.O. on 08.01.2020
Order uploaded on 09.01.2020
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in S.C. Suit No.2420/2008
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