Bombay High Court
Mahesh Govindji Trivedi vs Bakul Maganlal Vyas-Deleted And Ors on 25 March, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
8.ial.6121.22.s.1821.04..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANJALI Digitally signed by
ANJALI TUSHAR
TUSHAR
ORDINARY ORIGINAL CIVIL JURISDICTION
ASWALE
Date: 2022.03.25
ASWALE 17:52:21 +0530
INTERIM APPLICATION(L) NO.6121 OF 2022
IN
SUIT NO. 1821 OF 2004
WITH
SUIT NO. 1821 OF 2004
Mahesh G. Trivedi ..Applicant (Orig.Defendant No.1)
IN THE MATTER BETWEEN
Bakul Maganlal Vyas & Ors ..Plaintiffs
Vs.
Mahesh G. Trivedi & Ors ..Defendants
Mr.Cyrus Ardeshir a/w Omkar Kulkarni, for the Applicant in IAL
6121/22, for Orig.Defendant in S. 1821/04 and for the Plaintiffs in
CC.15/19.
Mr.Sanjay Jain a/w Hasmith Trivedi, Nidhi Chauhan i/b LJ Law, for
the Plaintiffs in S. 1821/04, and for the Defendants in CC.15/19.
CORAM:- B. P. COLABAWALLA,J.
DATE :- MARCH 25, 2022.
P. C.:
The above Interim Application is filed seeking the following Aswale page 1 of 5
8.ial.6121.22.s.1821.04..doc reliefs:-
(a) The Hon'ble Court be pleased to permit the Applicant/ Defendant No.1 to file its Affidavit of Documents alongwith Compilation of Documents on behalf of the Applicant/ Defendant No.1 and the same be taken on record of this Hon'ble Court and further necessary Orders may be passed by this Hon'ble Court for exhibiting the said documents;
(b) this Hon'ble Court be pleased to pleased to pass suitable directions in terms of the Order dated 20 th January, 2021 passed in Appeal No. 67 of 2020 for recording of evidence of the other witnesses on behalf of the Plaintiffs, if any and thereafter for recording evidence of the other witnesses on behalf of the Applicant/ Defendant;
2 Mr. Ardeshir, the learned counsel appearing on behalf of the Applicant/Orig. Defendant No.1, on instructions, has stated that the Applicant/Orig. Defendant No.1 is 89 years old and is not in good health. He, therefore, does not wish to enter the witness box and give any evidence. There are other witnesses such as the son of Defendant No.1 as well as a Valuer and a handwriting expert who will lead evidence for and on behalf of Defendant No.1. He, therefore, submitted that as far as prayer (a) is concerned, the same is rendered infructuous. 3 As far as prayer (b) is concerned, the directions on how evidence is to be led and in what order has already been set out in the Aswale page 2 of 5
8.ial.6121.22.s.1821.04..doc order of the Division Bench of this Court passed on 20 th January, 2021. Today, Mr. Jain, the learned counsel appearing on behalf of the Plaintiffs has stated that the Plaintiffs have already led evidence of Plaintiff No.1 and whose cross examination has also been completed. In fact, only the report of the Commissioner is awaited. He has stated that the Plaintiffs do not wish to lead any further evidence and that the evidence of the Plaintiffs be treated as closed. It is accordingly so ordered.
4 Considering the aforesaid circumstances, as per the order dated 20th January, 2021, now other witnesses of Defendant No.1 will have to lead their evidence. In this regard, Mr. Ardeshir, the learned counsel appearing on behalf of Defendant No.1 submitted that four week's time be granted for filing the affidavit of evidence, affidavit of documents, and compilation of documents. Mr. Jain opposed granting time for filing of any affidavit of documents as according to him the affidavit of documents ought to have been filed before the evidence of Plaintiffs was led. By allowing the affidavit of documents to be filed on behalf of Defendant No.1, the Plaintiff who would be taken by surprise, which cannot be permitted. I am unimpressed with this argument. When directions were given by this Court on 5 th December, 2018 (G. S. Patel, J.) this Suit was taken up for framing issues and issues were Aswale page 3 of 5
8.ial.6121.22.s.1821.04..doc framed which are appended to the said order. This order further directed that the Plaintiffs shall on/before 18 th January, 2019 file (i) the evidence affidavit of the Plaintiff; (ii) an affidavit of documents; and (iii) a compilation of documents duly indexed and paginated. Copies of each of these were to be served on the advocates for the Defendants on or before the next date. These are the exact same directions that I propose to pass with reference to Defendant No.1. Defendant No.1 though not entering witness box is going to lead evidence of other witnesses. For this purpose, whatever documents that Defendant No.1 seeks to rely upon and wants to prove through other witnesses, cannot be scuttled in this fashion. In these circumstances, it is directed that the affidavit of documents on behalf of Defendant No.1 shall be filed on or before 10 th May, 2022. Additionally, the compilation of documents and the evidence affidavit of all witnesses on behalf of Defendant No.1 shall also be filed on or before 10 th May, 2022. A copy of the affidavit of documents as well as the evidence affidavit and the compilation of documents (referred to above) shall be served on the advocates for the Plaintiffs immediately thereafter. The Plaintiffs shall thereafter file a statement of admission and denial of the documents sought to be relied upon by Defendant No.1 within a period of two weeks from the date of service of the affidavit of documents, evidence affidavit and the compilation of documents on them. The matter shall thereafter be Aswale page 4 of 5
8.ial.6121.22.s.1821.04..doc placed on Board "for marking of documents".
5 Accordingly place the above matter on Board on 10 th June, 2022 for "marking of documents".
6 It has been brought to my attention that an extension of time is required for formally filing of Commissioner's Report of PW-1. The time for the Commissioner to file his report is extended by a period of two weeks from today.
7 The above Interim Application is disposed of in the aforesaid terms. No order as to costs.
8 This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
Aswale page 5 of 5