Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 4652-2019
in SC 4029-10
MHCC010127592019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.4652/2019
CNR NO.MHCC010127592019
IN
SUIT NO. 4029/2010
IN
H.C.suit no. 18112010
1(a) Mrs. Naina Pratap Chugh ...Plaintiff.
Versus
Sushila Ram Chhabria & Ors. ...Defendants.
Adv.Shri Paras N. Vira for the plaintiffs.
Adv. Shri. Sharad Bhosle for the defendants.
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.14)
DATE : 8th DAY OF MARCH, 2021
ORAL ORDER
This notice of motion is taken out by the plaintiff for
permitting to lead the additional evidence and for marking of the
documents on record. This notice of motion is supported by an
affidavit being executed by Ashwin Pratap Chugh who is the co
plaintiff. The notice of motion has been strongly opposed by the
defendants by filing affidavit in reply being executed by Manu @
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Manohar Parumal Raghani who is the defendant no.4. The plaintiff
has also filed an affidavit in rejoinder. Today I heard learned
advocate Shri Paras Vira for the plaintiff and learned advocate Shri
Sharad Bhosale for the defenadnt.
2. Before going into the merits of this notice of motion, it is
necessary to mention that this is very old summary suit filed for
recovery of an amount and the records transpires that the original
plaintiff Pratap @ Prakash Chugh has filed an affidavit in lieu of
examination in chief on 24th June, 2014. On that day, my learned
predecessor has recorded the roznama which reads as “Adv. for
plaintiff present. Adv.for defendant present. Exh.6 Evidence affidavit
of PW 1Pratap Chugh filed, tor. Copy of evidence affidavit of P.W.1
be supply to defendant. Matter is adjd.for Admission and Denial of
documents/Cross of P.W.1 on 25.7.2014 ” . Thereafter the matter
was adjourned for admission and denial and on 9/10/2014 the
learned advocate for the plaintiff has made a statement at bar that
the plaintiff has expired in the month of September 2014. Thereafter
the legal heirs of plaintiff has been brought on record. Then the
defendant was permitted to lead the evidence and the records
transpires that on 22/10/2016 DW 1 Manohar Parumal Raghani has
filed an affidavit of evidence and his cross examination was in
progress. Meanwhile this notice of motion is taken out with a two
fold prayers. Firstly that the plaintiff may be permitted to lead an
additional evidence and secondly that the documents on record may
be marked as exhibits.
3. On perusal of the record and even the affidavit evidence
of plaintiff, there is nothing to indicate that the deceased (PW1)
Pratap @ Prakash Chugh and that time has entered into the witness
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box and the oath was to him and the contents of affidavit has been
verified and recorded by the Court. Thus, the so called affidavit
Exh.6 infact cannot be said to be the evidence as prescribed under
law. Moreso, as the witness has not entered, the further examination
in chief has not been taken place and the documents on record filed
by the plaintiff has also not been proved and exhibited. Therefore the
affidavit Exh.6 infact cannot be said to be the evidence on affidavit
as prescribed under law. But the case proceeded and the defendants
has filed their evidence and DW1 is under cross examination.
4. The notice of motion is opposed on two grounds, firstly
that it has been taken out at a very belated stage and secondly that
whatsoever the documents placed on record, are not proved and
therefore at this stage when the defendant is under cross
examination, this notice of motion cannot considered. In reply on
affidavit the defendant in para no. 5 has given the details of date wise
roznama and stages The learned advocate for the plaintiff fairly
conceded before the Court that he was under impression that the
documents have been marked and therefore he has filed the evidence
closed pursis on 3/11/2015. Be that, as it may, it is a trite law that
for any mistake on part of the advocate, the litigant cannot be made
to suffer. Herein, the advocate for the plaintiff has submitted that as
the affidavit evidence was marked and therefore he was under
impression that the documents also have been marked. I do not find
that this was an intentional mistake on part of the advocate because
in the present case, after filing of the affidavit evidence , the plaintiff
has expired and thereafter his legal heirs were brought on record.
5. I have gone through the issues framed by my learned
predecessor on 16/12/2013. For each issues the burden lies upon the
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plaintiff to prove its case. Learned advocate for the defendant has
submitted that the prejudice is going to caused to the defendant as
the cross examination of the defendant is in progress. I am not in
agreement with the said submission for the simple reason that infact
the affidavit Exh.6 is not the evidence in the eyes of law and neither
of the documents filed by the plaintiff have been proved by the
plaintiff. The issues shows that the burden is upon the plaintiff to
prove the case. Under this circumstances, infact considering the
proceedings it is as if the plaintiff has not led any evidence and the
defendant has start with the evidence. It is made it clear that even if
the plaintiff is permitted to led the additional evidence, under given
circumstances the defendant will certainly get an opportunity to file a
fresh evidence if any with the additional documents if required.
6. One fact is clear that the evidence of plaintiff is filed on
24/6/2014. The original plaintiff expired in the month of September
2014. Amendment was carried out by bringing LR's on record by
09/02/2015 and on 3/11/2015 the evidence closed pursis was filed .
Since then till 27/11/2019 when the case was in progress, no notice
of motion was taken out. As such there is approximately four years of
delay in taking out this notice of motion. Each and every day delay
have not been explained but for giving fair opportunity and for fair
trial and proper adjudication of this case, in my opinion, one chance
needs to be granted to the plaintiff to led the evidence and prove the
documents on record. So far as the delay is concerned, in my
opinion, imposition of heavy cost may suffice the purpose. As the
matter is old one, therefore certain conditions also needs to imposed
while allowing the notice of motion. Hence , in the interest of justice,
I pass the following order.
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ORDER
1. Notice of Motion No. 4652/19 is allowed and made absolute to
the extent that the plaintiff is permitted to led additional evidence in
the present suit and he shall file additional evidence in the form of
affidavit in lieu of examination in chief positively on next date.
2. The defendants will be at liberty to cross examine the plaintiff
witness and also to file a fresh evidence if any along with the
documents therein.
3. The plaintiff shall pay the costs of Rs.10,000/(Rupees Ten
thousand ) of which Rs.5,000/(Rupees Five thousand) is to paid to
the defendant and Rs.5,000/(Rs.Five thousand) is to be paid to the
District Legal Services Authority, Mumbai within a period of two
weeks from today.
4. Notice of Motion no. 4652/19 is disposed off accordingly.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.08.03.2021 Court, Gr.Mumbai (C.R.No.14)
Dictated on :08.03.2021
Transcribed on :09.03.2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:09.03.2021 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME: pm
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.14)
Date of Pronouncement of JUDGEMENT/ORDER 08.03.2021
JUDGMENT/ORDER signed by P.O. on 09.03.2021
JUDGEMENT/ORDER uploaded on 09.03.2021
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