Final Order 1

Order Details: Notice of Motion
Pdf Text: -1- NM 4043/19 in Sum Suit No. 1017/13
MHCC010111262019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4043 OF 2019
IN
SUMMARY SUIT NO. 1017 OF 2013
Mr. Kamlesh Mulchand Vaswani ...Plaintiff.
V/s.
Mr. Suresh Velji Bhanushali and Ors ....Defendants.
Appearances:
Ld. Adv Kalpesh Nansi for plaintiff.
Adv. A. S. Khan for defendant Nos. 1, 2 and 4
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.BORLEPWAR
(C.R.No.13)
DATED : 11th March, 2021
ORAL ORDER
1. Plaintiff took out this notice of motion for permission to file
additional affidavit of evidence alongwith additional documents.
2. Perused notice of motion, affidavit in support of notice of
motin and oral submission of Learned Advocate for the defendants to
dismiss the motion.
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3. Following points arise for my determination. I record my
findings thereof for the reasons mention below:
Sr.
No.
POINTS FINDINGS
1 Whether permission can be granted
to the plaintiff to file additional
evidence affidavit alongwith
additional documents?
In affirmative
2 What order ? Notice of Motion is
allowed as per final order
REASONS
As to point No. 1 and 2
4. I have heard, Learned Advocate Kalpesh Nansi for the
plaintiff and Advocate A. S. Khan for defendant Nos. 1, 2 and 4.
5. In brief, it is contention of the plantiff that he filed
affidavit of evidence and complilaiton of documents on or about
27.04.2017. He inadvetantly did not mention some points in the said
affidavit of evidence. The said some point are of prime importance. He
wants to file additional affidavit of evidence and put forth those vital
points on record alongwith supporting one document. Cross
examination of the plaintiff is to begin. Therefore, Notice of motion be
allowed.
6. In brief, it is contention of the Learned Advocate appearing
for defendants that he does not want to file reply to the notice of
motion, but he has strong objection to allow the notice of motion. It is
his contention that details of documents are not mentioned in the notice
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of motion as well as in affidavit in support of notice of motion. This
notice of motion is taken out after long period of filing affidavit of
evidence. Therefore, he lastly prayed to dismiss the notice of motion.
7. Perused affidavit of evidence filed by the plaintif vide
Exhibit-12. The affidavit of evidence is affirmed on 2.02.2017. Perused
plaint. Perused issues. Issue No. 1 is framed “whether defendant nos. 1,
2 and 4 prove that defendant no. 3 is exclusively responsible and the
lible for the transation entered with plaintiff”. Second issue is “Whether
the plaintiff proves that he is entitled to recover Rs.3,23,200/- from the
defendants”. The said issues are framed on 17.11.2016.
8. Plaintiff has to prove that he is entitled to recover the said
amount from the defendant. Perused Section 101 of Indian Evidence
Act. As per the said provision, whoever desires, any Court to give
judgment, as to any legal right or liability dependent on the existance of
facts which he asserts must prove that those facts exist. When a person
is bound to proof the existance of any fact, it is said that the burden of
proof lies on that person.
9. Perused Order-18 of the Code of Civil Procedure. The said
provision deals with hearing of the suit and examination of witnesses. I
have minutely gone through Order-18 of the Code of Civil Procedure.
There is no legal bar from filing additional evidence affidavit.
10. Accroding to the Learned Advocate appearing for the
defendants, the plaintiff did not mention the details of the documents in
the motion. I am of the opinion that if permission is granted to the
plaintiff to file additional affidavit of evidence alongwith compilation of
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additional documents in that situation, the plaintiff has to serve copy of
the additional evidence affidavit alongwith compilation of the
documents to the defendant. Therefore, there is no prejudice to the
defendant, if the notice of motion is allowed.
11. It is further contention of the Learned Advocate for
defendants that the notice of motion is taken out after long period of
filing of affidavit of evidence of the plaintiff. Admittedly cross-
examination of plaintiff is to begin. Therefore, there is no prejudice to
the defendants, if the notice of motion is allowed. Hence I record my
findings to point no. 1 in affirmative and point no. 2 notice of motion is
allowed, as per final order. I proceed to pass the following order.
ORDER
1. Notice of Motion No. 4043 of 2019 in Summary Suit No.
1017/2013 is allowed as under.
2. Plaintiff is allowed to file additional affidavit of evidence
alongwith additional documents.
3. Parties to bear their own costs.
4. Notice of Motion No. 4043/2019 stands disposed of.
5. Order dictated and pronounced in open Court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 11/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 11/03/2021
Transcribed on : 11/03/2021
Checked on : 11/03/2021
and Signed on : 11/03/2021.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
12.03.2021 at 05.45 p.m.
UPLOAD DATE AND TIME (VARSHA PAHURKAR)
NAME OF TYPIST
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 11.03.2021
Judgment/order signed by P.O. on 11.03.2021
Judgment/order uploaded on 12.03.2021
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