Final Order 2

Order Details: Copy of Judgment
Pdf Text: .. 1 .. Judgment in Revision 42 of 2021
Presented on : 24.03.2021
Registered on : 27.04.2021
Decided on : 02.09.2021
Period required for disposal :
Years 00 Months 05 Days 08
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
(APPELLATE BENCH)
(CNR No.MHSCA30003512021)
REVISION APPLICATION NO. 42 OF 2021
In
EXHIBIT NO.135
In
R.A.D. SUIT NO. 183 OF 2004
Jalaram Developer,
through ALPESH K. AJMERA,
an adult, Carrying on Business as
Proprietor of M/s. Jalaram Developers,
Having his address at
236/238, Samuel Street, Masjid Bunder,
Mumbai – 400 003.
Email : alpesh@ajmera.co.in
Mo.No. 9821118883 ... Applicant
(Org. Defendant No.2)
Versus
1. SANJAY KANUBHAI KAPADIA
Adult, of Mumbai, Indian Inhabitant,
Aged 47 years, presently residing at
601, Giri Building, Adarsh Dudhalay,
Off. Marve Road, Malad (W),
Mumbai – 400 064.
and Ground Floor premises,
Amar Prakash Building,
behind Milap Apartment,
S.V. Road, Malad (W),
Mumbai – 400 064. ... Respondent No.1
(Original Plaintiff)
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2. JITENDRA JAGANNATH KAKKAR,
an adult, of Mumbai, Indian Kakkar
residing at 504, Louise Tower,
Near Orlem Church, Malad (W),
Mumbai – 400 064. ... Respondent No.2
(Original Defendant No.1)
Ld. Advocate M/s. A.V. Jain Associates for the Applicant.
Coram : Smt. S.B. Mahale, Additinal Chief Judge
&
Smt. N.P. Pawar, Judge
Court Room No.41,
Date : 02.09.2021
JUDGMENT : (Per N.P. Pawar, Judge)
This revision application is preferred by the applicant/original
defendant No.2 to set aside the order dated 23rd February, 2021 by
C.R.No.32 passed below Exh.135.
Brief facts of this revision application are as under;
2. Applicant contended that the original plaintiff i.e. present
respondent No.1 had filed the suit bearing No. R.A.D. Suit No.183 of 2004
for declaration of tenancy in respect of suit premises. Evidence of D.W.1
has been recorded by the learned Trial Court. There are some errors in the
recording of the evidence done on 03.03.2020 and 09.03.2020 of
defendant No.2. Hence, the present applicant filed an application Exh135
for correction of the evidence before the learned Trial Court. But the
learned Trial Court has rejected the said application by passing order
below Exh.135. The learned Trial Court has failed to appreciate that the
application Exh.135 is not afterthought, he has not blamed the Court in
any manner, he has not considered the arguments advanced by the
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learned advocate. Due to the lockdown, there was a delay in filing the
application. Hence, prayed that the impugned order suffers from error
apparent on its face and results in great miscarriage of justice. Hence, it
be set aside and the corrections in the evidence of defendant No.2 be
allowed. Hence, the revision application.
3. Advocate for respondent No.1 argued the said revision at
length. Respondent No.2 failed to argue the matter.
4. Considering the arguments of the learned advocate, following
points arise for our determination and we record our findings thereon for
the reasons mentioned below;
Sr.
No.
POINTS FINDINGS
1. Whether the impugned order passed by
learned Trial Court below application
Exh.135 requires interference at the hands of
this Court ?
.. No
2. What order ? .. Application
stands dismissed.
R E A S O N S
As to Points No.1 & 2 :
5. Learned advocate for applicant vehemently argued before the
Court that the applicant i.e. original defendant No.2 filed his affidavit in
lieu of examinationinchief on 25.03.2019 and he was crossexamined by
the opposite party. The crossexamination of present applicant i.e. original
defendant No.2 was concluded on 09.03.2020. On perusal of the
recording of evidence, the applicant realised the errors in the evidence
recorded on 03.03.2020 and 09.03.2020. Accordingly, they prepared an
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application on 16.03.2020. But, due to the lockdown, they could not file
it on record and could file it only on 05.02.2021. Thus, the application is
not afterthought as held by learned Trial Court. The corrections and
suggestions given in the application Exh.135 was gramatical in nature and
not otherwise. He argued that the evidence deposed by the applicant is
not contrary to the facts pleaded in the written statement. The mistakes or
errors in the evidence cannot be continued for any reason. Delay cannot
be a reason for rejection of the application. Hence, he prayed that the
revision application be allowed and the corrections be made in the
evidence.
6. The learned advocate for the respondent No.1 vehemently
argued before the Court and submitted that the application is afterthought
and learned Trial Court has rightly rejected the said application that the
present applicant could have objected during the crossexamination itself
and could have made application immediately, but they have made
application very late afterthought and hence, the learned Trial Court has
rightly rejected the application and observed that the application Exh.135
is afterthought. Hence, he prayed that the application is liable to be
rejected.
7. Heard both the learned advocate for appellant at length.
Perused the application Exh.135, evidence of the present applicant as
D.W.1 in R.A.D. Suit No. 183 of 2004 and the order passed by learned
Trial Court. Vide this revision application, applicant is intending to make
corrections in the evidence recorded by the learned Trial Court during the
course of evidence. Therefore, we would like to reproduce as to what
exact changes the applicant intends in the evidence of the applicant i.e.
D.W.1.
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(1) In the crossexamination dated 03.03.2020, in para4, to the
Question
“You are not disputing the Death Certificate (Exh.23)?”
The Answer given is
“I am not agree with it.”
Here applicant submits that, there is gramatical mistake and it
should be “I do not agree with it”.
(2) In the crossexamination recorded on 9 th March, 2020, in para13,
the present applicant has deposed,
“I don't recollect whether I had settled the dispute with Govind
Rajpurkar in this matter.”
Here, applicant intends that, it has been wrongly recorded as 'in this
matter', which needs to be deleted. Hence, he prayed that the
words 'in this matter' may be deleted.
(3) The third correction is, in the crossexamination dated 09.03.2020,
in para No.17, the present applicant has deposed,
“It is not true to say that after 12.05.2003 I started demolition
of the portion of suit building, but due to intervention of Police
Authorities, I stopped demolition.”
Here, applicant wants to correct by adding the word 'though' after
the word 'that' and before the word 'after'.
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(4) And the fourth correction which he intends is, in the cross
examination dated 09.03.2020, in para20, he has deposed that,
“It is not true to say that plaintiff has never committed any
breach of terms of tenancy.”
Instead the applicant wants to replace the above statement with the
statment that, “as the plaintiff was not the tenant, hence there
was no question for him to commit any breach of terms of
tenancy.”
8. We have gone through the corrections which the present
applicant intends to bring in his evidence before the learned Trial Court.
9. The corrections sought in the 1st question is gramatically
wrong, in 2nd is deletion of the words 'in this matter, the 3rd is adding of
the word 'though, and the 4th is, replacing the statement “as the plaintiff
was not the tenant, hence there was no question for him to commit any
breach of terms of tenancy”. By the 4th correciton, applicant intends to
change the nature of the answer given by him.
10. Here, it is pertinent to note that, the evidence i.e. the cross
examination of the present applicant was recorded in presence of his
advocate in the open Court. Moreover, the recording of the evidence is
done in open Court, so the parties must understand as to what is being
recorded and they must be alert and deligent enough to see as to whether
the recording done is as per the answer given by the witness. Had there
been any objection in the recording of evidence by the learned Trial Court,
then, the applicant should have immediately made his submission to the
learned Trial Court which he has failed to do. The recording of the
answers given by the applicant in his crossexamination was dictated and
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recorded in the open Court in the hearing of all. It is not the case of the
applicant or his advocate that he could not hear what the learned Trial
Court was dictating in the open Court. The dictation was given in
presence of both the learned advocates and the parties. The learned Trial
Court who has passed the order below Exh135 is the same who has
recorded the evidence. The corrections 1 to 4 sought by the applicant
changes the nature of the answer given by him, which cannot be allowed.
At the most, advocate for present applicant may argue the impact of the
answer recorded in his final arguments before the learned Trial Court.
Therefore, in view of our above discussion, we find no merits in the
present revision application and the order passed by learned Trial Court
needs no interference. The learned Trial Court has rightly passed the
order, as to what he has recorded in the evidence was taken by himself in
presence of the parties and advocates in open Court.
11. Apart from the merits of the revision application, it is
pertinent to note that revision application under Rent Act would be
maintainable only against the orders which affects substantive rights and
liabilities of the parties or any other substantive law or any other
procedural law as held in the case Bhartiben Shah Vs. Gracy Thomas,
2013(2) ALL MR 9(a),(c)(Bom.)(F.B.). Therefore, we are of the opinion
that, by the rejection of order below Exh.135, substantive rights of the
applicants had not been affected and thus the revision itself is not
maintainable.
12. Hence, in view of our above discussion, we are of the opinion
that the revision application of the applicant needs to be dismissed.
Accordingly, we answer point No.1 in the negative and in answer to point
No.2, we pass the following order;
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: O R D E R :
1. Revision application stands dismissed.
2. Both parties to bear their own cost.
Mumbai.
Date : 02.09.2021
I agree,
(S.B. Mahale) (N.P. Pawar)
Additional Chief Judge Judge
Court Room No.41 Court Room No.41
Small Causes Court(BB), Mumbai Small Causes Court(BB), Mumbai
Judgment Dictated on : 02.09.2021
Judgment Transcribed on : 02.09.2021
Judgment Checked on : 02.09.2021
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