Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM No.4902-2019 IN SUIT NO.7417-2004
MHCC010133972019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4902 OF 2019
IN
SUIT NO.7417 OF 2004
Ajay Sohanlal Jhuria ] ...Plaintiff.
Versus
State of Maharashtra & Others ]…Defendants.
Appearance:
Plaintiff in person.
Ld. Advocate Parimal Shroff for Defendant No.11, 11(b) and 11(c).
CORAM : V.G. RAGHUWANSHI
JUDGE, (C.R.NO.08)
DATE : 17/07/2023.
ORAL ORDER
1) By this notice of motion plaintiff prays for rejecting affidavit of
evidence filed by Rohit Shah, investigating appointment of Rohit
Shah as trustee of defendant No.11 and scrutinized documents
purporting to appoint respondent, stay recording of evidence in
this case. It is contention of the applicant that he has filed suit for
recovery of damages from defendant No.1 to 11 (c), to restrain
defendant No.1 to 7 from granting wrong sanction or permission
to activities carried by defendant No.11 (a) to (c), etc. He
submits that Rohit Shah filed his affidavit of examination in chief
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on behalf of defendant No.11, 11(b) and 11(c). Affidavit of
evidence filed by Rohit Shetty is liable to be rejected. Plaintiff
relies upon following documents to fortify his contention:-
a) Defendant No.11(b) a trustee of defendant No.11 applied to
administrative officer (school), G South, Mumbai Municipal
Corporation, Parel, Mumbai-400 013 seeking room in the school
conducted by Mumbai Municipal Corporation at Worli Sea face.
To the said application she attached list of chairman and trustees
of defendant No.11. That list does not contain name of
respondent as trustee to defendant No.11 (Ex.1).
b) Principal of the school furnished names of trustees of
defendant No.11 on directions of authority under Right to
Information Act on 22/01/2010. In that list also there is no name
of Rohit Shah.
c) Counsel of defendant No.11 furnished names of trustees of
defendant No.11 on 03/07/2012 as per directions of High Court.
In that list also name of Rohit Shah was not included (Ex.3).
Thereafter, advocate of defendant No.11, 11(b) and 11(c) vide
letter dated 21/11/2019 submitted that due to oversight,
admission of Rohit Shah as trustee of defendant No.11, was not
conveyed to plaintiff (Ex.4). Thereafter, counsel of defendant
No.11, 11(b) and 11(c) informed vide letter dated 18/10/2019
that he gave names of trustees of defendant No.11 as per
instructions of its client i.e. defendant No.11, 11(c) (Ex.5).
2) Plaintiff further submits that Rohit Shah filed affidavit of
evidence on 05/12/2018 along with documents but he did not
file his appointment letter as trustee of defendant No.11. Plaintiff
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filed his affidavit on 09/01/2019 with regard to affidavit of
evidence filed by Rohit Shah and submitted that Rohit Shah did
not submit letter of appointment as trustee. Therefore, affidavit
of evidence filed by Rohit Shetty be rejected. He contends that
counsel of defendant No.11 furnished documents on 28/08/2019
purporting to be appointment of Rohit Shah as trustee of
defendant No.11 on 05/02/2008. If respondent was appointed as
trustee on 05/02/2008, his name was suppressed from the list of
trustees time to time. Therefore, documents pertaining to
appointment of Rohit Shah as trustee may not be genuine.
Therefore, he prayed for rejecting affidavit and conducting
inquiry.
3) Rohit Shah filed his affidavit in reply to this notice of motion. He
submitted that said notice of motion is misconceived and not
maintainable. Plaintiff took out chamber summons No.1784/19
for impleading him as defendant alleging that Rohit Shah is one
of the trustees of defendant No.11. Now the plaintiff prays for
discarding evidence as trustees of defendant No.11. There is no
provisions in Civil Procedure Code to seek rejection of affidavit of
examination in chief filed by opponent. The court may accept or
reject evidence. However, there is no provision in Civil Procedure
Code and Evidence Act to reject affidavit of examination in chief.
Parties cannot withdraw affidavit of examination in chief filed by
them. Application is filed at belated stage with intention to delay
the trial. His affidavit is a part of record and it was taken after
administering oath to him. Therefore, it cannot be rejected. After
accepting affidavit of examination in chief on record court also
marked exhibit numbers to documents. Thus, documents are
admitted in evidence and now it cannot be expunged or removed
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from the record.
4) Rohit Shah further submitted that this court has no jurisdiction to
investigate his appointment as trustee of defendant No.11.
Assistant Charity Commissioner vide order dated 20/05/2017
accepted change report No.ACC-I/1237/2008 filed by defendant
No.11 trust Rohit Shah filed copy of order from the office of
charity commissioner appointing him as a trustee of defendant
No.11 on 05/02/2008 (Ex.B).
5) Rohit Shah further submitted that he filed his first affidavit of
examination in chief on 05/12/2008. Thereafter, he again filed
his further affidavit of examination in chief alongwith some other
documents on 09/01/2019. On both occasions there was
admission and denial of documents filed by defendant No.11,
11(b) and 11(c). Defendant No.11, 11(b) and 11(c) filed his
affidavit in his capacity as trustee of defendant No.11 trust.
Certified copy of resolution of trustees of defendant No.11 dated
04/12/2018 authorizing him to sign declaration, affirmation and
verify and file affidavit in lieu of examination in chief as trustee
of defendant No.11 trust was annexed to his first affidavit of
examination in chief dated 05/12/2018. Plaintiff was aware that
he was acting as trustee of defendant No.11. Inspite of that he
did not take steps till filing of this notice of motion. This shows
delay in filing notice of motion.
6) Rohit Shah further averred that plaintiff pleaded in chamber
summons No.1784/19 that he should be joined as a a party to the
suit as he is trustee of defendant No.11. He further averred that
plaintiff is blowing hot and cold and therefore this application is
liable to be rejected. Code of Civil Procedure does not contain
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any provision for rejection of evidence filed by witness.
7) Rohit Shah further submitted that defendant No.11, 11(b) and 11
(c) supplied to the plaintiff through their advocates vide letter
dated 28/08/2019 schedule III along with resolution passed by
No.1 Trustee admitting Rohit Shah as a trustee of defendant
No.11. Schedule III under Bombay Public Trust Act, 1950 is
record of his appointment as trustee from 05/02/2008. Assistant
Charity Commissioner dated 20/01/2017 makes it clear that
change report dated 05/02/2008 was accepted. Therefore,
plaintiff cannot say Rohit Shah is not trustee of defendant No.11.
He prayed for rejecting application filed by the plaintiff.
8) I have heard plaintiff and Ld. Counsel for defendants at length.
Plaintiff drew my attention towards three documents relied upon
by him to show that Rohit Shah is not trustee of defendant No.11
and therefore, his evidence should be rejected. On the other
hand, Ld. Counsel for defendant No.11 submitted that this
application is filed only to delay the suit. He drew my attention
towards plaintiff’s infirmities in chamber summons. He also
submitted that schedule III under Bombay Public Trust Act make
it clear that Rohit Shah is a trustee of defendant No.11. The
judgment passed by Assistant Charity Commissioner dated
20/1/2017 also shows that Rohit Shah is trustee. He also
submitted that plaintiff has no right to oppose examination of
Rohit Shah as witness of defendants.
9) This notice of motion is not tenable or cannot be allowed for
following reasons:-
a) Plaintiff has no right to pray for rejection of affidavit of
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evidence of witness filed by defendant No.11. As plaintiff has
right to examine witnesses of his choice defendant also has right
to examine witness of his choice. Plaintiff cannot govern the
desires of defendants.
b) This application is misconceived. Plaintiff can argue at the
time of final argument or bring material on record in the course
of cross examination to show that affidavit filed by witness of
defendant No.11 is not trustworthy. If he succeeds in bringing
said material on record court may disbelieve evidence of witness
examined by defendant No.11. Rohit Shah prima facie pointed
out that he is trustee of defendant No.11. Therefore, the
application is baseless. For aforesaid reasons this notice of motion
cannot be allowed. Hence, I pass following order:-
ORDER
Notice of Motion No.4902 of 2019 is rejected.
Date : 17/07/2023.
(Shri. V.G. Raghuwanshi)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on : 17/07/2023.
Transcribed on:17/07/2023.
Signed on : 31/07/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
09/08/2023 Mrs. S. A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
17/07/2023
JUDGMENT/ORDER signed by P.O.
on
31/07/2023
JUDGMENT/ORDER uploaded on 09/08/2023
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