Order 1

Order Details: Order
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IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44th COURT, ANDHERI, MUMBAI.
C. C. No. 327/DV/2018
Vanita Balchandra Rane .... Applicant/Petitioner
V/s
Balchandra Rane & Ors., …. Respondent
ORDER BELOW EXH.NO.20
(Passed on 03/05/2024.)
At the stage of hearing on the application for interim relief
under section 23 of the Protection of Women from Domestic Violence
Act, the respondent moved this application under section 91 of the Code
of Criminal Procedure interalia alleging that though the
applicant/petitioner filed her affidavit of assets and liabilities, yet she
has neither mentioned the name of the employers nor has annexed
salary slip to show her exact salary amount which she gets from the
society. Therefore, the respondent prayed to issue the summons to the
Secretary and Chairman of Chandgad, Azra Taluka Nagarik Path
Sanstha where the applicant is serving.
2. According to the respondent, the last three years' the cash
voucher book and the audit reports of the said society are required to
establish the exact salary amount of the applicant. As well as the
respondent prayed to issue the summons to the Chairman or developer
of Neelam Co.Operative Society to submit the agreement and list of
member alongwith the cash voucher book and the audit report of the
last three years.
(Sujitkumar C. Tayde)
M.M.,44th Court, Andheri, Mumbai.
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3. Per contra, the applicant opposed the application on the
ground that she does not have the documents sought by the respondent
and therefore, according to her, the said documents may be called from
the said societies. It is the stand of the applicant that the respondent
filed the application just to prolong the matter.
4. Having heard the learned advocates for both the sides, I
perused the record.
5. At the outset, it is pertinent to note here that as per the
directions given by the Hon'ble Apex Court in the case of Rajnesh Vs
Neha and Anr., (Cri.Appeal No.730/2020), if there is any dispute
with respect to the declaration made in the Affidavit of Disclosure, the
aggrieved party may seek production of relevant documents from the
opposite party under Order XI of the Code of Civil Procedure.
6. Having regard to the ratio laid down in the citation supra, I
am of the opinion that the applicant may be directed to produce the
documents sought by the respondent. But the applicant has come with
the specific stand that she does not have the said documents. In fact,
the applicant is not supposed to possess the cash voucher book and
audit reports of the said societies. Therefore, I find substance in the
reply of the applicant.
7. Moreover, it is settled position of law that one who desires
any Court to give judgment to any legal right or liability dependent on
the existence of facts which he asserts, must prove those facts. Thus,
the respondent is under obligation to produce the said documents
(Sujitkumar C. Tayde)
M.M.,44th Court, Andheri, Mumbai.
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which are being relied by him.
8. It is needless to say here that the respondent could have
obtained the said documents from the said societies by adopting due
procedure. In other words, the efficacious remedy was available with
the respondent and he could have produced the said documents
alongwith his reply to the interim application. The record shows that
the respondent filed his reply to the interim application on 21/09/2019
wherein he has mentioned the facts regarding the source of the income
of applicant. However, during the period of last five years, the
respondent did not take any positive step to obtain the said documents
and now at the stage of hearing on the interim application which is
required to be decided within the stipulated period as per the direction
of the Hon'ble Bombay High Court, the present application came to be
moved. Hence, considering the reply of the applicant and the conduct
of the respondent, I am of the opinion that the applicant cannot be
directed to produce the documents sought by the respondent at this
juncture. Resultantly, I pass the following order:
O R D E R
The application stands rejected.
Sd/
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
Date : 03.05.2024 44th Court, Andheri, Mumbai.
spj
(Sujitkumar C. Tayde)
M.M.,44th Court, Andheri, Mumbai.
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