Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 3424/19 (Suit 187/13)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.3424/2019
(CNR No.MHCC01-009380-2019)
IN
S.C. SUIT NO.187/2013
Raymond Framroze Gagrat, ..Plaintiff
V/s.
1. Nauzer Framroze Gagrat
2. Zarine Dadi Sarkar. ..Defendants
Appearance:-
Adv. Mr. Nishant Gambhir for plaintiff.
Adv. Mr. G.S. Hiranandani for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 18.2.2020.
ORAL ORDER
1. Perused Notice of Motion supported by an affidavit of
plaintiff Raymond Framroze Gagrat. I have also perused affidavit in
reply submitted by defendant no.1 Nauzer Framroze Gagrat.
2. I have heard Ld. Counsels for the both sides and taken
into consideration authority of Hon’ble Aurangabad Bench of
Bombay High Court, submitted and relied upon by Ld Counsel for
the plaintiff, in the case of Abdul Samad s/o. Nazmoddin through
L.Rs V/s. Abdul Wahed s/o Shaikh Ameer (Writ Petition No.6779 of
2009 with Writ Petition No.1892 of 2017) decided on 25.7.2019.
3. Ld Counsel for the plaintiff submitted that, he has filed
the Suit for declaration of his share in the suit flat against
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defendants. On or about 16.8.2018, he has filed affidavit of
evidence in the Suit. He further submitted that, subsequent to the
filing of the affidavit of evidence, plaintiff had realized that,
inadvertently, though in compilation of documents he had annexed
certain documents, some were not referred to in his evidence
affidavit. Therefore, on 10.4.2019, he had prepared an additional
evidence affidavit in lieu of examination-in-chief in the court
informing that the additional affidavit will be tendered in the court
on 14.6.2019 and copy was served on the other side on 10.4.2019
through the Counsel for the defendants it is annexed with the
Motion vide Exh.A.
4. Ld Counsel for the plaintiff further submitted that, after
additional affidavit of evidence was submitted by the plaintiff, the
defendant had not given any say on it from 10.4.2019 till
13.6.2019. But, thereafter, for the first time, took objection before
the court, which is not justified.
5. Ld Counsel for the plaintiff specifically argued that, the
additional affidavit submitted by the plaintiff in lieu of his
examination-in-chief is legal and proper and needs to be accepted
and taken on record. In view of objection taken by the defendants,
the court had directed the plaintiff to take appropriate steps and
accordingly present Motion is taken out. In support of his
submissions, Ld. Counsel for the plaintiff has placed reliance on
the above authority of Hon’ble Bombay High Court in the case of
Abdul Samad s/o. Nazmoddin through L.Rs V/s. Abdul Wahed s/o
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Shaikh Ameer (
supra).
6.
Per contra, Ld. Counsel for the defendants has strongly
opposed the Motion and relied on the affidavit in reply and argued
that, the Motion taken out by the plaintiff is devoid of any merit
and it is not maintainable in law. The additional evidence affidavit
is submitted only to fill in lacunae in the evidence affidavit already
submitted on record. It is an afterthought. He also referred to the
observations made by Hon’ble Aurangabad Bench of Bombay High
Court, submitted and relied upon by Ld. Counsel for the plaintiff
and pointed out from paras 6 and 7 that, the authority in fact
supports the objection of the defendants. After considering the
authority, Hon’ble Bombay High Court has held that, “
the plaintiff
would have an option of explaining the error in the affidavit by
stepping into the witness box to lead further oral examination-in-
chief or file an additional affidavit as a part of the examination-in-
chief and clarify the mistake if any”. Hon’ble High Court has
concluded that, witness in such case can continue recording of his
examination-in-chief by entering into the witness box and his
earlier affidavit tendered in the court which is now part of record
shall be read along with further oral examination-in-chief.
7. On the other hand, Ld. Counsel for the plaintiff
submitted that, the ratio of the above authority of the Hon’ble
Bombay High Court clearly supports the case of the plaintiff. As
per facts of the said case, there were two petitions decided by
Hon’ble High Court. In the second petition, trial Court had rejected
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the application at Exh.81 filed by plaintiff seeking rejection of
second affidavit filed by defendant no.1 by way of examination-in-
chief. It was submitted before Hon’ble High Court that the second
affidavit was required to be filed stating that some of the questions
set out in the first affidavit shall stand deleted. Therefore,
application at Exh.81 was filed by the plaintiff praying for the
order that the witness cannot be permitted to withdraw the
affidavit in lieu of examination-in-chief.
8. After considering the ratio of the above authority, I
find that, in para 5, Hon’ble Bombay High Court has held that,
legal position is very much clear as per ratio laid down in the case
of Banganga Co-operative Housing Society V/s. Vasanti Gajanan
Nerurkar and others (2016(7) ALL MR 415 = 2015(5) Bom.C.R. 813)
AND Digambar Ramchandra Bawaskar V/s. Soma Prabhu Pawar
and others (2018(3) ALL MR 618).
Relying on the above authorities, Ld. Counsel for the
plaintiff submitted that the notice of motion deserves to be
allowed.
9. I have also gone through the above authorities of the
Hon’ble Bombay High Court and taken into consideration oral
submissions made by Ld. Counsels for both sides. It is clear from
the observations of the Hon’ble High Court in the above said
authorities that, by filing additional affidavit the party cannot be
permitted to withdraw earlier evidence affidavit. However the party
may file further affidavit because Order XVIII Rule 4 do not limit
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the party to a single affidavit. Therefore, there is no impediment in
taking out on record additional examination-in-chief or filing of
further additional affidavit in lieu of examination-in-chief. Under
the above circumstances, the order passed by trial Court below
Exh.81 dated 5.1.2016 was set aside.
10. Thus, it is clear that, the facts of the case before
Hon’ble High Court are slightly different from the facts of the
present case. However, the ratio laid down in the said authority,
following earlier authorities, is applicable to the present case and
therefore, I am of the considered opinion that, the notice of
motion taken out by the plaintiff deserves to be allowed. Hence, I
proceed to pass following order:-
ORDER
1. Notice of Motion No.3424 of 2019 is hereby allowed and
made absolute.
2. The additional affidavit of evidence filed by the plaintiff
in lieu of Examination-in-chief dated 10.4.2019 is hereby
taken on record.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 18.2.2020 Gr. Bombay (C.R.03)
Dictated on : 18.2.2020.
Transcribed on : 18.2.2020.
Draft given to HHJ on 18.2.2020.
Signed by HHJ on : 21.2.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/
ORDER.
UPLOADED ON : 21.2.2020
TIME: 4.10 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 18.2.2020
Judgment/ order signed by P.O on 21.2.2020
Judgment/ order uploaded on 21.2.2020
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