Piroza Nowroji Deboo (Decd.)by Lrs. Homai Faredoon Modi Vs Noshir Phiroze Khambatta

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 7795 OF 2005

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 Miss Piroza Nowroji Deboo
 (since deceased) through
 Mrs. Homai Faredoon Modi ... Petitioner

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V/s

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 Noshir Phoroze Khambatta ... Respondent

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 Mr. A.K. Abhyankar with Ms. Monica D’Souza for the
 petitioner.

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 Mr. Vineet Naik with Mr. Bharat Joshi for the
 respondent.

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CORAM: P.V. KAKADE, J.

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DATED: 3RD APRIL, 2006

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P.C.:

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 1. Heard learned counsel for both parties. Perused the
 record.

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 2. The petitioner who is plaintiff in R.A.D.
 declaratory Suit No. 248 of 1982 and defendant in L & C
 Suit No. 453/478/01 moved Notice No. 4502 of 2004 in
 both suits to reserve his right of evidence of rebuttal
 to lead further evidence in L.E. & C. suit.

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 3. It may be noted that both suits were directed to be
 adjudicated by leading common evidence as parties were
 the same and issues involved were interlinked. In
 R.A.D. suit the issues were to the effect that, whether
 the plaintiff prove the tenancy of the defendant in
 respect of the suit premises and whether he was a
 protected tenant under the provisions of the Bombay Rent
 Act and if it is so proved, whether he was entitled for
 declaration of tenancy right in respect of the suit
 premises.

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 4. As against this, in L.E. & C. suit, the issues
 were to the effect that, whether plaintiff proves that
 defendant was his licensee in respect of the suit
 premises and whether the license was terminated in
 proper manner and further whether the plaintiff in that
 suit was entitled to get possession of the suit
 premises. There were two other issues to the effect
 that whether the defendant proves that he was deemed
 tenant in respect of the suit premises and was protected
 under the provisions of the Bombay Rent Act.

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 5. The evidence of both suits were directed to be led
 commonly and accordingly parties proceeded to lead
 common evidence.

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 6. The R.A.D. suit came to be filed in the year 1982,
 whereas the L.E. & C. suit came to be filed in the
 year 2001. The defendant in L.E. & C. suit sought to
 file additional affidavit of common examination-in-chief
 stating that additional affidavit was effective for both
 suits. In that suit he stated that he had filed his
 affidavit of examination-in-chief dated 7.4.2003 as
 plaintiff in R.A.D. Suit No. 248 of 1982 and the
 facts, evidence and documents produced in that suit in
 his defence in that suit were common. He had produced
 alongwith his affidavit of examination-in-chief in
 R.A.D. Suit No. 248 of 1982 all the relevant documents
 and further requested that those may be considered as
 his defence in L.E. & C. suit. He further stated that
 he reserves his right to lead evidence and produced
 documents in rebuttal in L.E. & C. suit. This aspect
 of reserving the right of leading evidence in rebuttal
 is the bone of contention between the parties in this
 writ petition.

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 7. After hearing both parties, the Trial Court came to
 the conclusion that the plaintiff’s right to lead
 evidence in rebuttal is justified and especially when he
 has reserved his right at the proper stage and, as such,

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 the notice was made absolute. Hence the present
 petition.

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 8. At the outset, it may be noted that provision of
 Order 18 Rule 3 of C.P.C. stipulates that, where there
 are several issues, the burden of proving some of which
 lies on the other party, the party beginning may, at his
 option, either produce his evidence on those issues or
 reserve it by way of answer to the evidence produced by
 the other party; and, in the latter case, the party
 beginning may produce evidence on those issues after the
 other party has produced all his evidence, and the other
 party may then reply specially on the evidence so
 produced by the party beginning; but the party
 beginning will then be entitled to reply generally on
 the whole case. The learned counsel for the respondent
 submits that this provision of Order 18 Rule 3 would not
 be applicable when cross suits are involved as in the

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 present petition. However, it must be noted that, even
 though the cross-suits are there, the Trial Court, by
 consent of the parties, has directed to lead common
 evidence in both suits and, therefore, even though the
 separate issues are framed, those are essentially to be
 answered by respective parties by leading common
 evidence and, therefore, in my considered view, the

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 provision of Order 18 Rule 3 would be the guiding
 principle for our purpose.

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 9. Turning to the matter at hand, as noted earlier, by
 way of additional affidavit, the respondent had stated
 that he had reserved his right to lead evidence and
 produced documents in rebuttal in L.E. & C. Suit and
 taking the clue from this statement the learned Trial
 Judge has come to the conclusion that when the
 respondent has reserved his right to lead evidence in
 rebuttal at proper stage, the opportunity to lead
 evidence in rebuttal to the evidence led by the
 plaintiff in L.E. & C. suit cannot be denied to the
 defendant in R.A.D. suit. According to the Trial
 Court, no harm and prejudice will be caused to the
 plaintiff in L.E. & C. suit if the defendant is
 allowed to lead evidence in rebuttal. The learned
 counsel for the respondent has made statement today that

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 he would not enter the witness box and all the evidence
 in rebuttal is intended to be led is in respect of
 documents and other witnesses only to the confined
 issues relating to the deposit of rent in the bank
 account and leave and licence.

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 10. On the other hand, the learned counsel for the

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 petitioner submitted that this is nothing but an attempt
 to fill in the lacunas on the part of the present
 respondent and, therefore, the order of the Trial Court
 should be set aside.

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 11. In my considered view, the trial is in progress and
 the evidence is being led by the concerned parties and
 if the evidence ia allowed to be led in rebuttal, the
 petitioner would have every opportunity to cross-examine
 the witnesses and challenge the documents which may be
 produced by the present respondent in connection with
 this matter by way of evidence in rebuttal and,
 therefore, no prejudice is, therefore, likely to be
 caused to the petitioner.

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 12. Under the circumstances, I do not see any
 illegality or perversity in the order passed by the
 Trial Court while making the notice absolute.

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 13. In the result, the petition is devoid of any merits
 and, therefore, stands dismissed with no order as to
 costs.

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 14. The trial Court is directed to expedite the hearing
 of the matter as one of the suit is of the year 1982.

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Piroza Nowroji Deboo (Decd.)by Lrs. Homai Faredoon Modi v. Noshir Phiroze Khambatta

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Piroza Nowroji Deboo (Decd.)by Lrs. Homai Faredoon Modi v. Noshir Phiroze Khambatta

Case brief

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What did the court decide?

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