Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 4426-19 in Suit no.4646-10
H.C.Suit No. 2861 of 2010 1 Date :20.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4426 OF 2019
IN
SUIT NO. 4646 OF 2010
(H.C. SUIT NO. 2861 OF 2010)
(CNR NO. MHCC010121212019 )
Shri. Narayan Lokaya Gujran .. Plaintiff
Versus
Smt. Kamla Kishanlal Talreja .. Defendant
Appearances :
Adv.Kezer Kharawala for plaintiff.
Adv.D.S.Jadhav for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 20.01.2020
ORDER
1. The plaintiff has filed instant Notice of Motion praying for
following reliefs :
a) That this Hon’ble Court be pleased to condone the delay,
if any cause to prefer the present Application by the
plaintiff for seeking leave of this Hon’ble Court to file
further Affidavit of Examination in Chief in lieu of the
order dated 03.10.2016 passed by this Hon’ble Court in
the Notice of Motion No. 1115 of 2016.
b) That this Hon’be Curt be pleased to allow the plaintiff to
file further Affidavit of Examination in chief dated
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14.08.2019 duly affirmed in respect of secondary
evidence of the documents mentioned in the scheduled
annexed herewith in pursuance of the order dated
03.10.2016 passed by this Hon’ble Court in Notice of
Motion No. 1115 of 2016 filed by the plaintiff in the
present suit.
d) For such further and other reliefs as in the nature and
circumstances of the case this Hon’ble Court may deem
fit.
2. It is contended by the plaintiff that he has filed present suit
for cancellation of Deed of Partition dated 12.10.2009 entered
intO between plaintiff and defendant. On 05.01.2015, he has
tendered his evidence alongwith compilation of documents. On
03.10.2016 he has been permitted to lead Secondary Evidence in
respect of several documents.
3. It is contended by the plaintiff that as per his instruction, his
advocate filed pursis dated 17.11.2016 whereby he informed that
he did not wish to file further evidence in respect of the documents
for which the secondary evidence was allowed. He has further
taken an advice of Counsel Mr. R.R. Salvi who advised him that
the averments made in his earlier Examination in Chief dated
05.01.2015 are sufficient for exhibiting, marking and proving the
contents of the documents. In the meantime, the parties trying to
settle the matter and therefore, settlement talks were going on
between the them. However, the matter could not be settled.
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4. It is further contended by the plaintiff that at the time of
proceedings with the matter, his present advocate advised him to
file further Affidavit of Examination in Chief in respect of
documents of which Secondary evidence was allowed on
03.10.2016 as well as to place original letter dated 25.02.2011
passed by his advocate to the advocate of defendant and reply
dated 02.04.2011 issued by the defendant to his advocate.
Accordingly, he has prepared further Affidavit of Examinationin
chief on 14.08.2019. Therefore, plaintiff by way of instant Notice
of Motion, seeking leave to file Additional Affidavit in support of
the documents of which secondary evidence is allowed as well as
to place original letter dated 25.02.2011 and reply of defendant
dated 02.04.2011.
5. The Notice of Motion strongly opposed by the defendant by
filing say. It is contended by the defendant that present Notice of
Motion is hopelessly barred by law of limitation. The defendant in
support of his submissions relied of the decision of Hon’ble
Bombay High Court in case of Ballumal A. Jaisingh V/s. M/s.
J.J.Builders & Ors. reported in 2003(3) Mh.L.J. Page 238,
wherein the Hon’ble High Court held that in the absence of proper
application of condonation of delay, Court has no jurisdiction to
condone the delay. Hence, on that count itself, the Notice of
Motion needs to be dismissed with the exemplary cost.
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6. It is further contended by the defendant that the defendant
after filing of pursis dated 17.11.2016 has waived the right of
filing further Affidavit of Examinationinchief. Hence, defendant
prayed for dismissal of Notice of Motion.
7. Heard both the sides. Perused Notice of Motion as well as
reply. It is not in dispute that the plaintiff vide order dated
03.10.2016 was allowed to lead the secondary evidence in respect
of five documents. It is further not in dispute that, thereafter, the
plaintiff filed pursis dated 17.11.2016 contending that he do not
wish to file further Evidence of aforesaid documents. It is the
specific case of the plaintiff that subsequently, he has been advised
by his advocate to file further evidence to show source of those
documents and also to file original letter dated 25.02.2011 and
reply dated 02.04.2011.
8. The filing of Affidavit by way of examination in chief is
governed by the Order 18 Rule 4 of C.PC. Whereby it is provided
that in every case examination in chief of the witness shall be on
Affidavit. The aforesaid Order 18 Rule 4 of C.P.C. does not
preclude the witness from filing further Evidence. Only the
objection which is raised by the defendant is that after filing of the
pursis to the effect that the plaintiff do not wish to lead further
evidence in respect of certain documents, in my view, it does not
preclude the plaintiff from tendering further evidence as
admittedly the crossexamination is not yet begin. If the cross
examination would have been completed and thereafter the
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plaintiff would have sought permission to lead further evidence to
prove the documents by way of secondary evidence. In that
eventuality, it would not be allowed him as it may tantamount to
filling of lacuna in the evidence. As the crossexamination is yet to
begin, in my view, the defendant would have full opportunity to
crossexamine the witness. Therefore, no prejudice would caused
to the defendant, if the present Notice of Motion is allowed.
9. As far as regarding letter dated 25.02.2011 and reply dated
02.04.2011, they are the original copies for which the plaintiff is
having every right to file further evidence of examinationinchief.
10. The defendant raised question of limitation which is in the
present case governed by the Bombay City Civil Court Rules, which
is in procedural nature. I could not find any bar in the substantive
law i.e. Limitation Act, barring plaintiff from filing Affidavit of
Examination in Chief. Hence, in my view,in the absence of any
statutory provision merely, on the procedural technicalities, the
parties should not be denied to exercise their right. Hence, in my
view, the present Notice of Motion needs to be allowed. Thus, I
proceed to pass the following order :
ORDER
1. Notice of Motion No. 4426 of 2019 is hereby absolute in
terms of prayer clause (a) and (b). Plaintiff is allowed to
file further Affidavit of Examinationinchief and is directed
to serve the copy to the defendant.
2. Plaintiff to bear cost of Notice of Motion.
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3. Notice of Motion No. 4426 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 20.01.2020 Greater Bombay.
Dictated on : 20.01.2020
Typed on : 20.01.2020
Draft Submitted on : 20.01.2020
Checked on : 21.01.2020
Signed on : 21.01.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/01/2020 at 5.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
20/01/2020
JUDGMENT/ORDER signed by P.O.
on
21/01/2020
JUDGMENT/ORDER uploaded on 24/01/2020
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