Balkrishna S.S. Kakodkar and anr. Vs. Rama Babal Vasta

Balkrishna S.S. Kakodkar and anr. vs Rama Babal Vasta

Type Court Judgment Court Mumbai Decided Jan 29, 2004

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Citation: sooperkanoon.com/367474
Court: Mumbai High Court
Judge: N.N. Mhatre, J.
Decided On: Jan 29, 2004
Case Number: Writ Petn. No. 348 of 2003
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

- Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii) Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for...

Key legal issue: Civil
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 7, Rule 14 - Order 13, Rule 10 - Order 18, Rule 4 and 4(1)

Parties & Advocates

Appellant / Petitioner

Balkrishna S.S. Kakodkar and anr.

Advocate R.G. Ramani, Adv.

Respondent

Rama Babal Vasta

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 7, Rule 14 - Order 13, Rule 10 - Order 18, Rule 4 and 4(1)
Reported In: AIR2005Bom200; 2004(3)ALLMR505

Excerpt

.....reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in..........court. this provision of law cannot be construed to mean that those documents which are not produced along with the affidavit as examination-in-chief cannot be relied on by a party. no doubt admissibility or otherwise of such a document will always be subject to the orders of the court. however, to disallow the production itself would, in my view, be incorrect.3. in any event, the object of this provision is to make the opponent aware of the documents sought to be relied on by a party producing such documents. undisputedly, the construction licence was referred to in the plaint as well as in the affidavit-in-evidence. a copy of the same was supplied to the respondent even prior to their filing the written statement. therefore, no prejudice would have been caused if the petitioner had been allowed to exhibit the construction licence when produced in the court. order 7, rule 14, in any event, permits production of documents as long as they are entered in list and are produced by the plaintiff when the plaint is presented by him and shall be at the same time delivered a copy to the defendant. there is no doubt that a copy of the document has been delivering to the respondent and, therefore, the view taken by the trial court is hypertechnical and is required to be set aside.4. the impugned order is set aside. rule is made absolute in terms of prayer (i).

Full Judgment

ORDER

N.N. Mhatre, J.

1. The short question involved in the present petition is whether a document could be produced before the Court, in evidence, if the same has not been annexed to the affidavit which forms part of the examination-in-chief before a Court

2. The petitioners have instituted Regular Civil Suit No. 210/2000 in the Court of the Civil Judge, Sr. Division at Quepem for the reliefs of mandatory injunction, and permanent injunction. An application for temporary injunction was also filed. An affidavit was filed by the petitioner No. 1 stating that the copies of the documents relied on by the petitioners were delivered to the respondent. This affidavit was filed on 21-5-1998. One of the documents which was delivered to the respondent was a copy of the construction licence. Written statement was filed on 20-6-1999 by the respondent. In accordance with the CPC, the petitioners filed affidavit-in-evidence of their first witness along with certain documents. This affidavit was filed on 17-12-2002. Although a reference was made to the construction licence in para 19 of the affidavit, the construction licence was not filed along with the affidavit. On the same day, the petitioners made an application under Order 13, Rule 10, read with Section 151 of the CPC calling for the records of Regular Civil Suit No. 35/ 97/B from the Court of the Civil Judge, Sr. Division Quepem as the original of the construction licence was produced in those proceedings. This application was allowed. On 23-1-2003, the first witness of the petitioners was being examined and certain documents of the petitioners were sought to be exhibited, The petitioners sought to exhibit the construction licence which was then available in Regular Civil Suit No. 35/97/B before the Court. However, on 3-3-2003, the respondent objected to the petitioners' producing the construction licence as it was not filed along with the affidavit-in-evidence. On 27-3-2000, the trial Court rejected the application made by the petitioners and disallowed the production of the construction licence on the ground that Order 18, Rule 4(1) of CPC permits a party to rely upon only such documents as are filed along with the affidavit. The Court has, therefore, held that any document which has not been filed along with the affidavit cannot be taken on record and marked as an exhibit.

2. Although the respondent has been served, nobody appears for them today. Order 18, Rule 4 makes it clear that while recording the evidence, the witness shall file an affidavit, produce copies of documents which ought to be supplied to the opposite party. If such documents are filed and par ties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the orders of the Court. This provision of law cannot be construed to mean that those documents which are not produced along with the affidavit as examination-in-chief cannot be relied on by a party. No doubt admissibility or otherwise of such a document will always be subject to the orders of the Court. However, to disallow the production itself would, in my view, be incorrect.

3. In any event, the object of this provision is to make the opponent aware of the documents sought to be relied on by a party producing such documents. Undisputedly, the construction licence was referred to in the plaint as well as in the affidavit-in-evidence. A copy of the same was supplied to the respondent even prior to their filing the written statement. Therefore, no prejudice would have been caused if the petitioner had been allowed to exhibit the construction licence when produced in the Court. Order 7, Rule 14, in any event, permits production of documents as long as they are entered in list and are produced by the plaintiff when the plaint is presented by him and shall be at the same time delivered a copy to the defendant. There is no doubt that a copy of the document has been delivering to the respondent and, therefore, the view taken by the trial Court is hypertechnical and is required to be set aside.

4. The impugned order is set aside. Rule is made absolute in terms of prayer (i).

Same Court & Year Mumbai · 2004 Same Parties Balkrishna S.S. Kakodkar and anr. vs Rama Babal Vasta Same Subject Civil Same Judge N.N. Mhatre, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 7...

Civil