Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion 4274-2019 in SU 3164-2008
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.4274 OF 2019
(CNR NO.MHCC01-011688-2019)
IN
SUIT NO.3164 Of 2008.
(CNR No.MHCC01-008956-2007)
Radheshyam Ramlal Dhanuka }...PLAINTIFF.
Versus
Alok Jajodia & Ors. }...DEFENDANTS.
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Shri.Ravindra Singh h/f. Adv. Sarogi, learned advocate for the plaintiff.
Smt.Swati Sawant, learned advocate for defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 11/03/2021)
1. By filing this Notice of Motion, plaintiff has prayed to mark
the affidavit dtd.03/09/2005 of Suraj Ramesh Parmar as exhibit.
2. Read the affidavit filed in support of the Notice of Motion,
affidavit-in-reply filed by the defendants & rejoinder filed by the plaintiff.
Heard learned Shri.Ravindra Singh advocate for the plaintiff and
learned Smt.Swati Sawant advocate for the defendants. I have also gone
through the written arguments filed by the learned advocate for the
plaintiff. Perused the entire record.
3. Learned advocate for the plaintiff argued that the two
witnesses viz. PW-2 and PW-3 examined by the plaintiff have deposed
that deponent Suraj Parmar has executed affidavit dtd.03/09/2005 in
their presence, evidence of those witnesses is sufficient for marking the
said affidavit as exhibit, deponent Suraj Parmar is no more and hence,
in view of the provisions of Section 32 of the Evidence Act, said affidavit
be marked as exhibit.
4. As against this, learned advocate for the defendants argued
that by passing a detailed order dtd.28/03/2016, this court has rejected
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the prayer made previously by the plaintiff to mark the affidavit of Suraj
Parmar as exhibit. She argued that plaintiff has not stated anything
about the said affidavit either in the plaint & in his affidavit of
examination-in-chief, there is no material to show that as to how the
said affidavit came in custody of the plaintiff and death certificate of the
deponent of said affidavit is not produced on record due to which,
prayer made in this Notice of Motion cannot be accepted.
5. It is not in dispute that plaintiff had filed Notice of Motion
No.1295 of 2016 wherein, one of the prayer was to mark the affidavit of
Suraj Parmar as exhibit & said prayer has been rejected as per order
dtd.28/03/2016. While rejecting the said prayer, Court has observed in
Para-4 that said document is not pleaded by the plaintiff, plaintiff is not
author of the said document and there are no averments for marking
the said document as exhibit under Section 32 of Evidence Act. It is a
matter of record that plaintiff has thereafter examined two more
witnesses to prove the said affidavit and it is in view of evidence of
those two witnesses, plaintiff has prayed to mark the said affidavit of
Suraj Parmar as exhibit.
6. I have gone through the depositions of PW-2 Mrs.Ethel
D'Mellow and PW-3 R.R.Varma. PW-2 has deposed that she is Notary,
deponent Suraj Parmar had signed said affidavit in her presence, it is
mentioned in her Register at serial No.18517 of 2005, deponent had put
signature in her Register, deponent was identified by advocate R.R.
Varma (PW-3) and said document was notarized by her. Request was
made on behalf of the plaintiff to mark said affidavit as exhibit on the
basis of evidence of PW-2 but said request was not accepted and order
passed to that effect during evidence of PW-2 is not challenged by the
plaintiff. Thus, affidavit of Suraj Parmar cannot be marked as exhibit on
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the basis of evidence of PW-2.
7. Thereafter, plaintiff has examined PW-3 R.R.Varma who
deposed that said affidavit was prepared by him as per the instructions
of Suraj Parmar, he had been to Thane for signature of Suraj Parmar, he
had explained the contents of affidavit and identified it. He stated that
contents of affidavit are true and correct as it has been drafted as per
instructions of Suraj Parmar. At the outset, it may be stated here that
even though PW-3 has stated to have prepared the affidavit as per the
instructions of Suraj Parmar, it is apparent from his evidence that his
evidence was not found sufficient by the court for marking the affidavit
of Suraj Parmar as exhibit and only on that count, it was not marked as
exhibit during his evidence. Again, PW-3 has not stated the contents of
said affidavit in his evidence.
8. May that it be so, as is observed by the court in order
dtd.28/03/2016 passed in Notice of Motion No.1295 of 2016, there is
no pleading in the plaint in respect of the said affidavit. Furthermore,
neither the plaintiff nor the two witnesses examined by him have
anywhere deposed that deponent Suraj Parmar is dead or cannot be
found out or is incapable of giving evidence. In absence of any material
in that regard, the prayer made to mark the said affidavit as exhibit by
invoking Sec.32 of the Evidence Act cannot be accepted. Thus, an order.
O R D E R
Notice of Motion No.4274 of 2019 is dismissed.
Costs in the main cause.
Date : 11/03/2021. (P.P.RAJVAIDYA)
Dictated on : 11/03/2021. Judge, C.R.No.9
Checked on : 11/03/2021. City Civil Court,
Signed on : 11/03/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
15.03.2021 at 1.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 11/03/2021.
Order signed by P.O. on 11/03/2021.
Order uploaded on 15/03/2021.
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