Bombay High Court
Hiren Pravin Doshi vs The State Of Maharashtra And Ors on 25 February, 2021
Author: N. J. Jamadar
Bench: N. J. Jamadar
17-comss-11-2004.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.3479 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO.11 OF 2004
Hiren Pravin Doshi ...Applicant/
Ori.Plaintiff
vs.
The State of Maharashtra and Ors. ...Defendants
Ms. Nupur Mukherjee i/b. M/s. N.N. Vaishnawa & Co., for the
Plaintiff.
Ms. Jyoti Chavan, AGP for the State.
Dr. Prateek M. Rathi, Administrative Medical Offcer, ESI Scheme,
Worli, Mumbai present.
CORAM : N. J. JAMADAR, J.
DATE : FEBRUARY 25, 2021
P.C.:
. This application is preferred by the Plaintiff to redact
paragraph Nos. 6, 7, 8, 9, 12, 14 and 17(5) of the affdavit in lieu of
examination in chief fled by Defendant's frst witness Mr. Pratik
Motilal Rathi.
2. The substance of the application is that the assertions in
above numbered paragraphs are wholly beyond the pleadings. A
party cannot be permitted to lead evidence in respect of facts
which are not pleaded.
Vishal Parekar, P.A. ...1
17-comss-11-2004.doc
3. The Defendant Nos. 1 and 2 fled affdavit in reply. It is
contended that there is necessary foundation in the written
statement for the assertions made in the affdavit in lieu of
examination in chief. The ground of supply of medicines with
short expiry period and the initiation of proceedings under Sales
Tax Act have been taken in the written statement. Hence, the
application deserves to be rejected.
4. I have heard the learned counsel for the Plaintiff and the
learned A.G.P for the State.
5. The learned counsel for the Plaintiff took the Court through
the averments in the above numbered paragraphs of the affdavit
in lieu of examination of chief and the contentions in the written
statement. An endevour was made to draw home the point that
the assertions do not fnd support in the pleadings. It was urged
that in the absence of pleadings a party cannot lead evidence.
6. Reliance was placed on the judgment of the Supreme Court
in the case of Kattinokkula Murali Krishna vs. Veeramalla
Koteswara Rao and Ors.1 wherein in the backdrop of the election
1 (2010) 1 Supreme Court Cases 466.
Vishal Parekar, P.A. ...2
17-comss-11-2004.doc
dispute, it was enunciated that 'it is a settled principle of law that
evidence beyond the pleadings can neither be permitted to be
adduced nor can such evidence be taken into consideration.'
Reliance was also placed on the judgment of a learned single
Judge of this Court in the case of Rajendra Singh and Ors. vs.
Jitendra Singh Rajendra Singh Kushwaha and Ors.2
7. The proposition that the party cannot be permitted to lead
evidence beyond pleadings is fundamental. However, the pleadings
cannot be construed very strictly.
8. If the tenor of the defence sought to be put forth on behalf of
the Defendants is considered then it would be diffcult to accede
to the submission that there is no foundation in the pleadings as
regards the supply of medicines with a short expiry period and
initiation of proceedings under Sales Tax Act. So far as the
initiation of prosecution by C.B.I., in the cross examination of
P.W.1, the fact that the prosecution has, in fact, been initiated
against the Plaintiff, was conceded.
9. In the aforesaid view of the matter, the submissions on
2 2014 (2) ALL MR 132.
Vishal Parekar, P.A. ...3
17-comss-11-2004.doc
behalf of the Plaintiff that there is no foundation in the pleadings
so far as the averments in paragraph Nos. 6, 8, 12, 14 and 17(5)
cannot be acceded to. The assertions in paragraph Nos. 7 and 9,
however, do not fnd support in the pleadings. Hence, the
application deserves to be partly allowed. Thus, the following
order.
ORDER
1] The averments in paragraph Nos. 7 and 9 of the affdavit in lieu of examination in chief of Mr. Pratik Motilal Rathi (D.W.1) stand redacted. They shall not be read as part of the affdavit in lieu of examination in chief of D.W. 1.
2] The application stands disposed of.
10. List the Suit on 18th March, 2021.
(N. J. JAMADAR, J.)
Vishal Parekar, P.A. ...4