Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3558 OF 2019
IN
S.C.SUIT NO.7291 OF 2002
Sunita R.Thakur .... Applicant
(Original Defendant)
V/s
Bank of India ....Defendant
(Original Plaintiff)
In the matter between
Bank of India ...Plaintiff
V/s
Sunita R.Thakur ....Defendant
APPEARANCE:
Advocate O.A.Das for plaintiff.
Advocate Rupa Bhave for defendant.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 13th January, 2020
ORDER
Defendant has taken out Notice of Motion to set aside roznama
dated 10/7/2019 and to take on record the statement of admission and
denial of the defendant.
2. It is submitted by defendant that the suit was filed by the plaintiff
against her husband but her husband was died. After demise her
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husband she was brought on record as legal heir of her husband. It is
further submitted by the defendant that the suit is posted on 7/7/2019
for the cross examination of witness no.1 but the said witness was
discharged on the same date. It is further submitted that advocate for
plaintiff want to file evidence of another witness in support of their
claim however, matter was adjourned on 17/6/2019. It has further
submitted that on 17/6/2019 the plaintiff sought further time to file
affidavit of evidence of 2nd witness and accordingly time was granted
and matter was adjourned to 10/7/2019. It is further submitted that on
10/7/2019 when the matter was called out as the advocate for plaintiff
stated that the affidavit of evidence is to be affirmed and requested
matter to be kept back. Thereafter, matter was called out at 4.27 p.m.
advocate of plaintiff had tendered additional affidavit of evidence of
witness alongwith list of documents. However, no time was granted to
the advocate for the defendant to go through the said additional claim
affidavit of evidence alongwith list of document. It is further submitted
that court was proceeded to exhibit the documents tendered by
advocate for plaintiff and without even recording the say of defendant
document were exhibited. Defendant further submitted that he has
legal right to file their statement of admission and denial on the
document filed by plaintiff. It is further pointed out by defendant that
the document exhibited by the court are the document that are being
introduced into the proceeding for the first time and too after the
discharge of plaintiff witness no.1. The plaintiff had tried same tactics
while filing the affidavit of witness no.1 wherein he had annexed new
document. Lastly, it is submitted that the entries in roznama dated
10/7/2019 may kindly be set aside and allow the defendant to take
inspection of original documents and thereafter to file say on list of
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documents.
3. Opportunity was given to the plaintiff to oppose the Notice of
Motion by filing written reply however, plaintiff failed to tender written
reply and therefore, the Notice of Motion is proceeded without written
reply of the plaintiff.
4. I have heard advocate Rupa Bhave Ld.Counsel for defendant. She
submitted that right to challenge the document tendered by plaintiff are
taken away by the Court. She pointed out that the plaintiff has
tendered documents on record and according to the procedure she has
right to tender her admission and denial to the document filed by the
plaintiff. However, without granting opportunity to challenge the
documents the order dated 10/7/2019 was passed and documents are
marked as exhibited document. She submitted that the roznama dated
10/7/2019 may kindly be set aside an opportunity may be granted to
her to challenge the document by way of filing admission and denial on
record. She further submitted that she has been deprived to exercise
her right to file admission and denial on to the document which is
submitted by plaintiff. Lastly, it is submitted that the document which
exhibits are marked may be set aside and she may be granted
permission to tender admission and denial.
5. Admittedly, the plaintiff has failed to file written reply however,
plaintiff has tendered list of document and judgment on record and
orally submitted that once the documents are marked as exhibit it
cannot be deexhibited. In support of Ld.Counsel for plaintiff relied on
Writ Petition No.8569 of 2016 wherein the Hon'ble High Court of
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Judicature at Bombay observed in Sultan Suleman Qureshi V/s
Mrs.Anisa Rafiq Charolia And Ors. (date of judgment 18/8/2016)
that once documents are marked as exhibited it cannot be deexhibited.
6. After gone through the submission of both the counsel, I drew my
attention towards record. As per the record, the present suit was filed
by plaintiff in the year 2002 and thereafter, the suit was adjourned on
one and another reason and finally the issues are framed on
25/10/2013 vide Exh2. After framing issues witness for plaintiff
tendered affidavit in examination in chief alongwith list of document as
the entries on the roznama dated 10/7/2019 shows that the documents
tendered by plaintiff was marked as an exhibited document by my Ld.
predecessor. On the same date advocate for defendant was present in
the Court but she does not raise any objection for marking document as
an exhibited document. Admittedly, in the present suit documents are
marked as an exhibited document by my Ld. predecessor by passing
order on 10/7/2019 and as per the the direction of Hon'ble H.C. in
Sultan Suleman Qureshi V/s Mrs. Anisa Rafiq Charolia And Ors. at
once the documents are marked as an exhibit they cannot be de
exhibited. Therefore, I do not find any merit in the prayer of Notice of
Motion in respect of deexhibition of document. Further more, if
defendant want to challenge the document option is available with him
to challenge the same in the cross examination. Therefore, in the
abovesaid reason relying on the ruling cited (supra). Under such
circumstances, I hold that the Notice of Motion does not have any merit.
Therefore, I proceed to pass following order.
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ORDER
Notice of Motion No.3558 of 2019 is dismissed with costs.
Date:13/01/2020 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 13/01/2020
Typed on :13/01/2020
H.H.J.Signed on :13/01/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
13/01/2020 at 4.30 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
13/01/2020
JUDGMENT/ORDER signed by P.O. on 13/01/2020
JUDGMENT/ORDER uploaded on 13/01/2020
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