Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010098292019
CNR NO. MHCC010098292019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3612 OF 2019
IN
SUMMARY SUIT NO.8582 OF 1993
(HIGH COURT SUIT NO.410 OF 1993)
Smt. Shantibai Ramchand Punjabi ]… Plaintiff.
V/s.
Smt. Bimla S. Dau ]... Defendant.
Appearances :
Ld. Adv. Mr. Rohit Pawaskar for plaintiff.
Ld.Adv. Ms. Gayatri Sharma for defendant.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 17th October, 2022
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
for discarding the para No.7 of affidavit of evidence of P.W.1 and the
documents at Sr.No.5 to 44. It was submitted by defendant that the
plaintiff had filed the suit on the basis of agreement of sale and for
specific performance of the same. The plaintiff in her pleading had
mentioned that she was ready and willing to perform her part of
obligation and the requisite amount is ready with her. However, in the
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affidavit of evidence of P.W.1, P.W.1 had added additional facts by
stating that the balance consideration was kept in the short term deposit
and had filed documents at Sr. No.5 to 44 in support of his contention.
The said facts has not been pleaded in the plaint and hence it be
discarded and the said documents be also discarded from the evidence
of P.W.1. It was submitted that if the said evidence is not discarded, the
defendant will suffer serious prejudice. And therefore, the Notice of
Motion be allowed.
2. The plaintiff filed her reply and denied the contention of
the defendant. It was submitted that the plaintiff had already pleaded
in the plaint regarding the amount kept by her towards the discharge of
her obligation in the agreement of sale. Now the plaintiff is only filing
the documents regarding the same. No new facts are introduced by the
plaintiff. The present Notice of Motion is only for delaying the
proceedings and hence the Notice of Motion be dismissed.
3. Heard the Learned Advocate for plaintiff and defendant.
Perused the Notice of Motion and reply. Also perused the plaint. The
plaintiff had filed the present suit for declaration that the agreement for
sale in respect of suit premises is subsisting and binding upon the
defendant. It is the contention of the defendant that the plaintiff has
taken out the defendant by surprise by introducing new facts regarding
the short term deposit and the documents filed at Sr.No.5 to 44 in the
compilation of documents. The perusal of the plaint shows that in para
No.6 the plaintiff had mentioned regarding her intention to complete
her part of obligation as per the agreement of sale. The plaintiff also
pleaded that the requisite amount is ready with the plaintiff since
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September, 1992. It therefore seems that the facts were already
pleaded in the pleading in respect of the intention of the plaintiff and to
show her readiness and willingness to perform her part of obligation,
the plaintiff has now filed the documents showing her readiness and
willingness to complete her part of obligation. As such the facts are
required to be pleaded and the evidence is not to be pleaded. Thus the
facts already being pleaded, the plaintiff has now only filed her
evidence in support of the facts already pleaded. The said documents
does not now introduce any new pleadings and therefore it is not
necessary to discard the said documents and the evidence of P.W.1. I,
therefore, proceed to pass the following order:
ORDER
1. The Notice of Motion No.3612 of 2019 is dismissed.
2. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 17102022 City Civil Court, Gr. MUMBAI
Dictated on : 17102022
Transcribed on : 21102022
checked on : 21102022
Signed on : 21102022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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ERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.10.2022 at 05.05 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Date of pronouncement of
judgment/order
17.10.2022
Judgment/order signed by P.O. on 21.10.2022
Judgment/order uploaded on 21.10.2022
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