Final Order 1

Order Details: Chamber summons
Pdf Text: Order in Chamber Summons
No. 1597 of 2019 1
MHCC010090122019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
CHAMBER SUMMONS NO.1597/2019.
IN
S. C. SUIT NO.7495/1983
Westcoast Builders Private Limited ...Applicant.
(Defendant No.1)
In the matter of :
1a. Ms. Rashna Ratan Surveyor and Anr. ...Plaintiffs
V/s.
Westcoast Builders Private Limited and Anr. ...Defendants.
Appearances :
Adv. Duraiya Retiwala for plaintiffs.
Adv. Priyanka Kothari for defendant No.1.
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 02/11/2022
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Order in Chamber Summons
No. 1597 of 2019 2
ORDER
Defendant No. 1 has taken out the present Chamber
Summons with a prayer to delete/discard/strike out the paragraphs
mentioned in the Schedule No.1 annexed with the Chamber Summons
from the affidavit in lieu of examinationinchief of plaintiff No.1(a)
filed on 04.02.2019.
2. It is contended that the plaintiff No.1(a) has filed his
evidence affidavit on 04.02.2019. The paragraphs mentioned in the
schedule 1 are in nature of submissions and arguments and are not in
the nature of evidence. These paragraphs are totally irrelevant.
Therefore, it cannot be read in evidence. If entire evidence of plaintiff
No.1(a) in his affidavit is considered, it would result in tremendous loss
of time and money to defendant No.1 as well as it will waste time of the
Court. Therefore, it is necessary to discard the said paragraphs.
3. Plaintiff contested the Chamber Summons by filing reply.
Plaintiff No.1(a) filed affidavit in reply and contended that defendant
No.1 cannot dictate to the plaintiffs as what to depose. The objection
raised can be raised and decided only at the time of final hearing of the
suit. There is no provision to delete any portion of evidence affidavit.
The paragraphs mentioned in Schedule 1 are the narration of facts from
the record of the case available in the office of the original plaintiff.
These are relevant as they are sequence of facts and the conduct of the
defendants which created the dispute. The Chamber Summons is an
attempt to hide the misconduct of defendant No.1. Defendant No. 1
created hindrance in the course of justice by filing frivolous application.
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No. 1597 of 2019 3
On the above grounds, it is prayed that Chamber Summons be
dismissed with costs.
4. Heard Ld. advocates for both parties. Perused the evidence
affidavit at Exh.4 and schedule annexed with the Chamber Summons.
Ld. advocate for the defendant has placed reliance upon the judgments
of Hon'ble Bombay High Court in Harish Loyalka and Another V/s.
Dileep Nevatia and Others (Suit No.3589 of 1996) Ordinary Original
Civil Jurisdiction Bombay High Court and Mrs. Mahabanoo Navroz
Kotwal V/s. Piloo Fali Bomanji and Others (Chamber Summons (L)
No.67 of 204 in Testamentary Suit No. 26 of 1990, Ordinary Original
Civil Jurisdiction.
5. In the judgment of Harish Loyalka and Another V/s.
Dileep Nevatia and Others (supra), it is observed in the paragraph
No. 20 as under :
It is therefore the duty of a court to exclude hearsay evidence
even if no objection is taken. The evil consequence of
admission of hearsay evidence is not merely that it prolongs
litigation and increases its cost, but that it may unconsciously
be regarded by judicial minds as corroboration of some piece
of evidence legally inadmissible and thereby obtain for the
latter quite undue weight and significance. Now it cannot be
that merely because CPC Order 18 seeks to hasten trials
therefore it, subsilentio, permits the inclusion of inadmissible
evidence, or that having the 'testimony' on 'affidavit' is a
license to introduce into the record material that is
inadmissible in law.
6. In the judgment of Mrs. Mahabanoo Navroz Kotwal V/s.
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No. 1597 of 2019 4
Piloo Fali Bomanji and Others (Supra) the Hon’ble High Court
observed in para no. 42 as under :
In my view, the affidavits permitted to be filed under
Order 18 Rule 4 in lieu of examination in chief has to
contain only the deposition which is relevant facts in
issue in the suit or relevant aspects which the witness
has to prove before the Court and not beyond what is
pleaded by the parties and also not which is irrelevant
to the issues framed. If an opposite party raises any
objection about any part of the deposition which is
totally irrelevant, beyond the pleading and/or the same
irrelevant ex facie, Court can direct the deponent to file
fresh affidavit after deleting the irrelevant part of
evidence or can ignore such irrelevant part of evidence
on which no cross examination could be warranted.
7. As per the above judgments, the matters that are
argumentative or in the nature of submissions and pleadings, etc.
cannot be the part of affidavit of examination in chief under Order
XVIII Rule 4 of the Code of Civil Procedure, 1908 (In short 'CPC').
8. On the minute scrutiny of the evidence affidavit at
Exh.4, it can be noted that para Nos.41, 43, 44, 53 to 56, 59, 60, 82, 84
to 96 are the in the nature of submissions/arguments whereas para
Nos.46 to 52, 61 to 81 and 83 are in the nature of denials to the
pleading of the written statement and set off. In view of the judgments
of the Hon'ble Bombay High Court, the above paragraphs can not form
the part of the evidence affidavit contemplated under Order XVIII Rule
4 of the CPC. So far as the para Nos.31, 32, 40 and 57 are concerned,
the same do not appear to be irrelevant or purely in the nature of
submissions or arguments.
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9. Defendant No.1 has prayed to delete, discard or strike out
the relevant paras. However, in the light of the judgments of Hon'ble
Bombay High Court relied upon by the Ld. advocate for the defendant
No.1, it will suffice if relevant paras of the evidence affidavit are
ordered to be ignored while recording cross examination, without any
risk of any adverse inference or other consequence. In the result, the
Chamber Summons deserves to be partly allowed. Hence, the following
order is passed :
ORDER
1. Chamber Summons No. 1597 of 2019 is allowed in following
terms:
2. Advocate for defendant No. 1 is at liberty to ignore the para
Nos. 41, 43, 44, 46 to 56, 59 to 96 of affidavit in lieu of
examinationinchief of plaintiff No.1 (a) at Exh.4 and not to cross
examine plaintiff No. 1 (a) on the above portion of the affidavit,
without risk of adverse inference or other consequences.
3. Chamber Summons No. 1597 of 2019 is disposed off
accordingly.
(S.B. Pawar)
Judge,
Dated: 02/11/2022 City Civil and Sessions Court,
Greater Bombay (CR 59)
Declared on : 02.11.2022
Dictated on : 02.11.2022.
Transcribed on : 10.11.2022
Checked on : 14.11.2022
Signed on : 15.11.2022.
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No. 1597 of 2019 6
30.11.2022 at 12.15 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 02.11.2022
Order signed by P.O. on 15.11.2022
order uploaded on 30.11.2022
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