Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4811 OF 2019
IN
S.C. SUIT NO. 212 OF 1987
( CNR No.MHCC01-013121-2019)
1. Madanlal Mehra & Ors. ...Plaintiffs.
V/s.
Shri Om Prakash Sharma & Ors. ...Defendants.
Appearance :-
Learned advocate Mr.Aashdin Chivalwala a/w. Mayank Ratnparakhe for
plaintiff nos. 4(a), 4(b), 5 and 8.
Learned advocate Nirav Marjadi a/w. Advocate Veer Ashar for
defendant nos. 1 and 2.
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 26/11/2021.
ORDER
This is a notice of motion taken out by the plaintiff nos. 4(a),
4(b), 5 and 8 for examining the witness Mr. Naresh Shah prior to the
plaintiffs. This notice of motion is resisted on behalf of the defendants
by filing their reply.
2. Heard both the learned counsels on behalf of both the sides at
length. Read the notice of motion, affidavit of plaintiff no. 4(a)Vidhi
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Arora in support of this notice of motion, Reply filed on behalf of
defendant nos. 1 and 3 and affidavit of Om Prakash Sharma in support
of their say. Perused record.
3. The learned counsel on behalf of plaintiffs has submitted that
plaintiffs have filed the present suit for declaration and injunction
relating to the property known as ‘Pushp Kunj’ situated at 24-B,
Carmichael Road, Mumbai. The plaintiff no.8 was initially going to file
his Affidavit of Evidence and was to be examined prior to their second
Mr. Naresh Shah. However, as plaintiff no.8, a senior citizen does not
reside in India, and is currently out of India with his family, he is unable
to attend court. The suit is pending since the year 1987 and the
plaintiffs being desirous of expediting the captioned matter and in view
of the fact that the plaintiff no.8 is unavailable to sign and affirm his
Affidavit of Evidence, the present plaintiffs are seeking indulgence of
this Hon’ble Court to permit examination of Mr. Naresh Shah prior to
the examination of the plaintiff no.8.
4. The learned counsel on behalf of the defendants has submitted
that the plaintiffs have not made any sufficient cause in this notice of
motion for examining to Naresh Shah prior to the evidence of the
plaintiffs. The deponent of the said affidavit in support of notice of
motion has not mentioned a reason, and much less a valid reason for
non-availability of the plaintiff no.8 in India for his evidence. Being a
senior citizen he cannot and ought not to be allowed to plead that he
will come at this own time; and until the some other person, one Mr.
Naresh Shah may be permitted to give evidence on behalf of the
plaintiffs. The apparent reason given by the plaintiff no.4(a) is that the
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suit be disposed expeditiously. If the plaintiff is wishing of the suit to be
heard expeditiously. Plaintiff no.8 should be present and offer his
evidence.
5. The learned counsel on behalf of the defendant has further
submitted that there are other plaintiffs who could depose the facts
even before Mr. Naresh Shah. The defendants have apprehend that
strategy of the plaintiffs is to fill-up the gaps and/or lacunae in the
evidence of the said Naresh Shah. This ought not to be allowed. This
strategy has been planned with ulterior motives, and to plug the
lacunae, if any, in the evidence of Mr.Naresh Shah. The evidence of Mr.
Naresh Shah is being proposed to be taken to fill up the lacunae in the
plaint.
6. The learned counsel on behalf of the defendant has further
submitted that no list of witnesses has been provided by the plaintiffs.
This is incomplete non-compliance with Order XVI Rule 1 of the Code of
Civil Procedure 1908. On these grounds, the said notice of motion
deserves to be dismissed with costs.
7. The learned counsel on behalf of the plaintiffs has argued that the
plaintiffs have want to examine Mr. Naresh Shah before the evidence of
plaintiffs because Mr. Naresh Shah is the husband of plaintiff no.5 Smt.
Ketki N. Shah. Mr. Naresh Shah is very well known and conversant with
the facts of this matter and he was attended meetings of Sankalp Co-
operative Housing Society Limited where the defendant no.1 is the
Chief Promoter. Therefore, in view of Order XVIII Rule 3A of C.P.C. is
permitted to the plaintiffs to offer evidence affidavit of Mr. Naresh Shah
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prior to the evidence of the plaintiffs.
8. The learned counsel on behalf of the plaintiffs has placed his
reliance on the judgment in the case of i)Hari Shrawan Sutar Vs.
Ramdas Tukaram Patil, 1985 Mh.L.J. 197. In this matter the Hon’ble
Court has permitted to examine of a party at later stage is quite
permissible.
The ratio held in above citation is also held in the following cases.
ii) In the case of Kwality Restaurant V/s. Satinder Khanna, 1978 SCC
OnLine P & H 169:ILR (1979) 1 P & H 71: AIR 1979 P & H 72.
iii) In the case of Romesh Kumar V/s. Chanan Lal, 1989 SCC OnLine J &
K 26: AIR 1991 J & K 4.
iv) In the case of Maguni Dei V/s. Gouranga Sahu and Others, 1978
SCC OnLine Ori 88:AIR 1978 Ori 228.
9. The learned counsel on behalf of the defendants has placed his
reliance on the following judgments.
i) In the case of Mrs. Anju Toshniwal & Ors. V/s. Expat Properties India
Ltd., in Writ Petition No. 3685 of 2019 in Suit No. 1767 of 2008,
decided on 23/08/2019.
ii) In the case of V. K. Muthusamy V/s. U.A.Habeen Firm and Ors., in
Civil Revision Petiton No. 3271 of 1993, decided on 22/07/1994.
iii) In the case of Kumudini Damodar Magar & Ors. Vs., Bhushan
Damodar Magar & Ors., 2004(3) Mh.L.J.
iv) In the case of Hari Shrawan Sutar Vs/ Ramdas Patil, 1985 Mh.L.J.
197.
v) In the case of Ayyasami Gounder & 4 Ors. V/s. T.S.Palanisami
Gounder, 1989-2 L.W., the Hon’ble Madras High Court has held that, “ A
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plain reading of R.3-A of O.18, C.P. C. indicates that the party should be
examined first and the other witnesses later, and if other witnesses are
to be examined first, and the parties should be examined later, the
Court should permit the party to so appear as a witness at a later stage.
Where the party desires to examine himself at a later stage, he should,
prior to the commencement of the evidence no his side, make an
application in that behalf before the Court for such later examination.
Otherwise, Order XVIII, Rule 3A of the Code will be honoured more in
its breach, rather than in its observance. ”
10. After hearing arguments advanced by learned counsels on behalf
of both the sides at length and on perusal of the record it appears to me
that the present notice of has been filed on behalf of the plaintiffs under
Order XVIII Rule 3A of the Code of Civil Procedure, 1908. I have
reproduced Order XVIII Rule 1 and 3A of the C.P. C. as under.
Order XVIII Rule 1- Right to begin- The plaintiff has the right to begin
unless the defendant admits the facts alleged by the plaintiff and
contends that either in point of law or on some additional facts alleged
by the defendant the plaintiff is not entitled to any part of the reliefs
which he seeks, in which case the defendant has the right to begin.
Order XVIII Rule 3A- Party to appear before other witnesses- Where a
party himself wishes to appear as a witness, he shall so appear before
any other witness on his behalf has been examined, unless the court, for
reasons to be recorded, permits him to appear as his own witness at a
later stage.
11. On perusal of the record, it appears to me that the advocate for
plaintiffs has submitted in his arguments that the plaintiffs want to
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examine Mr. Naresh Shah who is the member of the Sankalp Co-
operative Housing Society Limited alongwith member of his wife Mrs.
Ketiki Shah who is plaintiff no.5. On perusal of the record produced on
behalf of plaintiffs that Annexure ‘E’ List of the members of the
proposed ‘Sankalp’ Premises Co-operative Society Limited, Mr. Naresh
Shah and Mrs. Ketki Shah ( Plaintiff no.5) are shown members of the
Sankalp Co-operative Housing Society Limited. The documents below
Exhibit ‘D’ filed on behalf of the plaintiffs Minutes of the meeting of
Sankalp Co-operative Housing Society Limited also shows that Mr.
Nareh Shah was present in the meeting. The plaintiffs want to examine
Mr. Naresh Shah who is husband of the plaintiff no.5 prior to
examination of the plaintiffs.
12. On perusal of the record it shows that issues are framed on
24/04/2017. Since then the evidence affidavit have not filed of any
witness on behalf of the plaintiffs. The plaintiffs want to examine
plaintiff no. 8 Shri Yogesh R. Gandhi. But the plaintiff no.8 is old aged
person and at present he is residing at abroad. For this reason plaintiffs
want to examine the evidence of Mr. Naresh Shah who is husband of
plaintiff no.5 and also member of Sankalp Co-operative Housing
Society Limited.
13. On perusal of the ratio referred in above citations on behalf of
plaintiffs, it appears to me that the ratio in above citations supra are
perfectly applicable to the present case in my hand as there is no
intention for offering evidence of Mr. Naresh Shah for filling lacunae of
the plaint. On perusal of the citations referred on behalf of the
defendants it appears to me that with due respect ratio held in above
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citations are not applicable in favour of the defendants due to differ of
facts and circumstances in the case in my hand.
14. From above my discussion, I come to the conclusion that if this
notice of motion is to be allowed, then it will not cause any surprise or
injustice on the part of the defendants. Therefore, in view of Order XVIII
Rule 3A of the Code of Civil Procedure, 1908, the plaintiffs have
permitted to offer the evidence of Mr. Naresh Shah before the evidence
of plaintiffs. Hence, I proceed to pass following order.
ORDER
1. Notice of Motion No.4811/2019 is hereby allowed as prayed for.
2. Notice of Motion No.4811/2019 is disposed off accordingly.
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :26/11/2021. Gr. Mumbai
Dictated on: 26/11/2021
Transcribed on: 27/11/2021
HHJ signed on: 27/11/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
27/11/2021 at 5.00 p.m.
NAME OF STENOGRAPHER
( Mrs. V. V. Malgaonkar )
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
26/11/2021
Judgment/order signed by P.O. on 27/11/2021
Judgment/order uploaded on 27/11/2021
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