Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.2260 OF 2019
(CNR NO.MHCC010131232019)
SUIT NO.3318 OF 2013
M/s. R. K. Builders ..Plaintiff
V/s.
Nand Dilip Kapadia & others ..Defendants
Appearance :
Adv. Tushar Goradia for plaintiff
Adv. Siddharth Mehta for proposed defendant No.1 & 2.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 04/08/2022.
ORDER
1. This Chamber Summons is taken out by the defendant
No.1 & 2 by contending that plaintiff has filed his Affidavit of evidence
in lieu of examinationinchief at Exh.5. In Para (11) of the
examinationinchief, he has mentioned two sentences, which are as
under :
1. The bills have been duly received by the defendant Nos.1 and 2.
2. These bills have been duly received by defendant Nos.1 & 2.
2. It is further contended that in rejoinder to the summons
for judgment, the plaintiff has deposed that one Mr. Ashok Jain would
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allegedly visit the flat and handed over the bills to the flat owners. The
plaintiff i.e. P.W.1 has no personal knowledge about the service of bills.
These two sentences being hearsay is not admissible and cannot be
formed the part of examinationinchief, require to be expunged by
granting chamber summons.
3. Heard the rival parties. Perused the record.
4. On perusal of rejoinder, in Para (7), Page (5), the plaintiff
has contended that every month, the manager of plaintiff Mr. Ashok
Jain visits each flat and hand over the bills to flat owners. In the
Affidavit of examinationinchief, the plaintiff has ascertained that the
bill have duly served on defendant No.1 & 2. From these two
statements, it is contended by Ld. Advocate for defendant that the
plaintiff has never visited to tender the bills to the defendant but,
claiming that it is handed over by his Manager Mr. Ashok Jain. Thus,
he cannot claim the service of bills and cannot mention in this regard
in his Affidavitinchief as he has no direct knowledge regarding the
service of bills. It is the hearsay statement, which is not admissible in
the evidence and therefore, the statements in Para (11) of
examinationinchief are required to be expunged as it is not admissible
in law.
5. In support to his contention, the defendant is relying on
the judgments passed by the Hon'ble High Court in a case of, “Harish
Loyalka & another V/s. Dileep Nevada & others, reported in (2014)
4 AIR Bom R 545”.
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6. I have carefully gone through the cited case. In that case,
defendant No.1/the plaintiff to counter claim has submitted the
Affidavit in view of examinationinchief, which was having its major
part in the nature of submission/arguments and not in the nature of
evidence. In the set of circumstances, in that case, the Hon'ble High
Court has found that the evidence Affidavit submitted in lieu of
examinationinchief is not an examinationinchief.
7. In the present case, the plaintiff is intending to prove the
service of bills on defendant No.1 & 2. The sentences appear to be in
passive language in which it is not explained as to who has served the
bills to defendant No.1 & 2. But, it is claimed that the bills have been
served upon defendant No.1 & 2. In Affidavit of rejoinder, the plaintiff
has claimed that his Manager Mr. Ashok Jain has handed over the bills.
Thus, the contention regarding service of bills in Para (11) of
examinationinchief, is in continuation to the earlier contention
mentioned in rejoinder Affidavit to the summons for judgment,
omission to mention the name of Mr. Ashok Jain does not make the
statement inadmissible. Definitely, the plaintiff is not claiming the
service of bills by him directly. His knowledge of service of summons is
through Mr. Ashok Jain. Thus, the statements made in the
examinationinchief at Para (11) are admissible in the evidence. The
defendants are having every opportunity & right to impeach the
credibility of evidence of plaintiff in crossexamination. Thus, I am of
the view that the facts of cited case and instant case are different and
observation made in the cited case regarding the examinationinchief
filed in the cited case are not applicable to the present case.
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8. In view of above discussion, I am of the view that two
statements made in the examinationinchief at Para (11), are in nature
of evidence. Consequently, need not to be expunged from the record.
In the result, chamber summons fails. With this, the following order is
passed :
O R D E R
1. Chamber Summon No.2260/2019 in Suit No.3318/2013, is
hereby rejected.
2. Chamber summons disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge
City Civil Court, C.R. No.03
Date: 04/08/2022. for Gr. Bombay.
Dictated on : 04/08/2022.
Transcribed on : 06/08/2022.
Signed by HHJ on :
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“Certified to be true and correct copy of the original signed order”.
08/08/2022 (Mrs. Vidya Abhijit Mande)
at about 06.00 p.m. Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 04/08/2022
Order signed by Hon'ble Judge on : 08/08/2022
Order uploaded on : 08/08/2022
at about 06.00 p.m.
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