- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.4111 OF 2008 OF MOTION NO.4111 OF 2008 OF MOTION NO.4111 OF 2008 IN IN IN SUIT SUIT SUIT NO.744 OF 1989 NO.744 OF 1989 NO.744 OF 1989 Urmila P. Shah ...Plaintiff vs. M/s.Kamud Grinding Mills ...Defendants AND NOTICE OF MOTION NO.4110 OF 2008 NOTICE OF MOTION NO.4110 OF 2008 NOTICE OF MOTION NO.4110 OF 2008 IN IN IN SUIT SUIT SUIT NO.746 OF 1989 NO.746 OF 1989 NO.746 OF 1989 Hiralal K. Shah ...Plaintiff vs. M/s.Usha Masala Products ...Defendants AND NOTICE OF MOTION NO.4112 OF 2008 NOTICE OF MOTION NO.4112 OF 2008 NOTICE OF MOTION NO.4112 OF 2008 IN IN IN SUIT SUIT SUIT NO.745 OF 1989 NO.745 OF 1989 NO.745 OF 1989 M/s.Hemlata Masala Products ...Plaintiff vs. M/s.Usha Masala Products ...Defendants Mr.R.C.Shah a/w Mr.J.B.Patel for the plaintiffs in all the suits. Mr.Hiralal Thakkar, Sr.Counsel a/w Mr.K.D.Shah for the defendants in all the suits CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : DECEMBER 19,2008 : DECEMBER 19,2008 : DECEMBER 19,2008 P.C.: P.C.: P.C.: 1. The submissions of the learned counsel for the parties were heard on the notice of motion. The controversy involved in these three notices of motion is more or less similar and therefore for the sake of convenience, I am referring to the notice of motion no.4111 of 2008. The notice of motion has been taken out by the plaintiff. An affidavit in lieu of examination in chief was earlier filed by the plaintiff. The - 2 - evidence of the plaintiff was recorded on the basis of the affidavit in lieu of examination of chief. When the evidence was recorded, none appeared for the defendants and therefore, on 9th January 2008, this court passed an order closing the case for arguments on account of the absence of the defendants. Thereafter, a notice of motion was taken out by the defendants for recalling the order dated 9th January 2008. The said notice of motion was allowed on 13th June 2008 by this court. The notice of motion was allowed in terms of prayer clause (a) thereby permitting the defendant to cross-examine the plaintiff. The said order records that the plaintiff is entitled to lead further evidence if and in case he deems fit. 2. The present notice of motion has been taken out by the plaintiff seeking permission to file further/additional affidavit in lieu of evidence. The case of the plaintiff in affidavit in support is that after the settlement of issues neither the defendant nor their Advocate appeared at earlier and on 9th June 2008, the case was closed in absence of defendants or their Advocate. The submission of the learned counsel for the plaintiff is that an affidavit in lieu of examination in chief was earlier filed at the stage when the defendants were not appearing and the said affidavits were drafted on assumption that there may not be any contest by the defendants. He also pointed out that by order dated 26th August 2008, this court has impounded an agreement produced by - 3 - the plaintiff. He pointed out that on the basis of the order passed by the Superintendent of Stamps, now the plaintiffs have deposited the stamp duty and penalty and therefore, these subsequent events will have to be brought on record. He pointed out that after the defendants appeared, they have raised an objection for exhibiting the documents produced by the plaintiff and that is one more reason why further examination in chief will have to be permitted. 3. The learned senior counsel for the defendants opposed the prayer by submitting that now the plaintiff cannot be permitted to lead further evidence after his examination in chief was recorded in the form of affidavit in lieu of evidence. He pointed out that for bringing the fact of the payment of penalty and deficit stamp duty, it is not necessary to lead further evidence as the necessary documents could be always produced. He, therefore, submitted that the notice of motion be dismissed. 4. I have carefully considered the submissions. The learned counsel for the plaintiff has produced for perusal of the Court a draft of further affidavit in lieu of examination in chief of the plaintiff which he proposes to file. Perusal of the order sheet shows that the issues were settled on 21st November 2007. When the suit appeared thereafter on 5th December 2007, 12th December 007 and 9th January 2008, none appeared for the defendants. The order dated 9th January 2008 - 4 - discloses that in view of the provisions of Rule 2(a) of Order XII of the Code of Civil Procedure,1908, the documents produced by the plaintiff were admitted in evidence. The said order also records that the evidence of the plaintiff has been recorded. By the said order the case was closed for arguments on account of the absence of the defendants. Therefore, there is a substance in the submission made by the learned counsel for the plaintiff that the defendants were consistently absent and in the context of non-appearance of the defendants, affidavit in lieu of examination in chief was filed on assumption that there may not be any contest by the defendants. Now the defendants are raising an objection for admitting in evidence the documents produced by the plaintiff. Considering these peculiar facts, a case is made out for permitting the plaintiff to file further affidavit in lieu of examination in chief. The learned counsel for the plaintiff states that the plaintiff is desirous of examining one or two more witness. 5. Hence , I pass the following order : i) Notice of motion Nos.4111 of 2008, 4110 of 2008 and 4112 of 2008 are made absolute in terms of prayer clause (a). ii) Further affidavits in lieu of evidence by the plaintiff will be filed on or before 14th January 2009. The suit to be placed for recording of evidence on 22nd January 2009 at 12.00 noon. - 5 - JUDGE JUDGE JUDGE