Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.22 OF 2019
IN
SUIT NO.9423 OF 2000
Mandar Pharma & ors. ...Plaintiffs.
V/s.
Gobind Medical Store & anr. ...Defendants.
Appearances:
Ld. Adv.Mr.Pankaj Shah for plaintiff.
Ld. Adv.Mr.Samdhani for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 28th March,2019
ORDER
By way of this notice of motion defendants prayed for setting
aside order dt.28.11.2018 and permitted them to crossexamine the
plaintiffs' witness.
2. In supporting affidavit of Mr.Shaligram Rajgria, defendant No.2,
on behalf of defendants submitted that plaintiff has filed this suit
against them. The matter was fixed for crossexamination on
16.01.2018. However, when the matter was fixed for recording
evidence it was adjourned from time to time. On 28.11.2018 when
matter was on board, as the Advocate was crossexamined the witness
of plaintiff was suffering from fever and cold he could not appear in the
matter. When matter was first called the appearance of learned
Advocate Jainish Jain was not recorded and learned Advocate for
MHCC01-000048-2019
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defendant was under impression that the matter is adjourned and
therefore, he left. However, since no one appeared for defendant till
1.30 p.m. plaintiff's witness was discharged and right of defendant to
crossexamine was forfeited. Meanwhile they have taken out this notice
motion for setting aside that order and permit them to crossexamine
witness. If they are not permitted to crossexamine the witness, they
will suffer serious prejudice and plaintiff will not cause any harm. It is
inadvertent mistake on the part of learned counsel for defendant and
therefore, they prayed that order of 'nocross' be set aside and
defendant be permitted to crossexamine the witness of plaintiff.
3. After service of notice of motion upon plaintiff, Mr.Gautam
Bhupendra Parikh, have filed reply to the notice of motion and strongly
opposed the notice of motion. He submitted that notice of motion is
not maintainable. It is again the dilatory tactics. The affidavit in
support of notice of motion was not affirmed and therefore, it is a mere
piece of papers which cannot be considered to grant relief in favour of
plaintiff. There is no medical certificate attached by defendant to show
that defendants' counsel was suffering from fever and cold. After
realising that this incorrect statement might not accepted, the original
reasons, which was printed on the page, was latter changed, shows that
falsity in the version of defendant. As such defendant has no right to
seek such relief from this Court. The defendants have not come with a
clean hands and is guilty of “suppressio veri and suggestio falsi” and
therefore, cannot be permitted to revert back the wheel for cross
examining the witness, when their right is forfeited. Hence, they
prayed that notice of motion be dismissed with costs.
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4. Heard learned Advocate Pankaj Shah for the plaintiff and learned
Advocate Samdhani for defendants. Perused the submissions of both
the sides and record.
5. The present suit is for recovery of amount against defendants.
Defendants have tendered their written statement and matter was put
for evidence and chiefinaffidavit of Gautam Parikh came to be
tendered by plaintiff. Thereafter, admissiondenial of the documents
have taken place on 06.10.2016 by exhibiting the documents and
matter was kept for crossexamination of the witness by allowing notice
of motion to lead secondary evidence. When the matter was for cross
examination of the witness on behalf of plaintiff, an attempt was made
to get settle the matter in LokAdalat, which was not effected and the
witness of plaintiff appeared on 17.10.2018 for crossexamination. On
28.11.2018 also none appeared for defendant till 1.30p.m. and
therefore, witness came to be discharged and vide Exh.120 plaintiff
closed their evidence side. Thereafter, when the matter was kept for
defendants' witness on 19.12.2018, then notice of motion came to be
tendered by this defendant. The reasons mentioned in the notice of
motion is that the Advocate was suffering from fever and cold and
therefore, he was not able to attend the Court may be the ground, but
at the time defendant must be diligent enough to secure the presence of
their Advocate when the matter is called for hearing till 1.30 p.m. As
none appeared on 28.11.2018 witness of plaintiff came to be
discharged. In such circumstances, even witness is supposed to be
crossexamined by defendant, due diligence must be shown. No specific
reasons is mentioned. Even the affidavit of Shaligram Rajgira does not
bear seal of concerned Notary Public Advocate from Ranchi, Jharkhand
and signature was also under challenged.
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6. In such circumstances, whatever may be the fact, if one chance is
granted to defendants to put forth their cross by crossexamining
plaintiff's witness it will helpful for proper adjudication of the matter on
merits. It will also subserve the ends of justice. However, delay was
occurred, may be on one or other ground. Therefore, to compensate
the delay as condition precedent costs of Rs.5,000/ payable to
plaintiff on next date will permit defendant to crossexamine the
witness. Noncompliance of the order will forfeit right to crossexamine
the witness as per order dt.28.11.2018. With these directions, notice of
motion deserves to be allowed. Hence, I proceed to pass the following
order :
O R D E R
1. Notice of Motion No.22 of 2019 in Suit No.9423 of
2000 is made absolute, thereby order of 'nocross
examination' dt.28.11.2018 is set aside subject to
payment of costs of Rs.5,000/ payable to plaintiff's
witness on the date of crossexamination i.e
12.06.2019.
2. For noncompliance and prosecuting the matter on
12.06.2019 the right of defendant to crossexamine
plaintiff's witness will forfeit forever and order
dt.28.11.2018 will remain in force.
3. Both parties to take note.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 28/03/2019 City Civil Court, Gr. MUMBAI
Dictated on : 28.03.2019
Transcribed on : 29.03.2019
Signed on : 29.03.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.03.2019 at 2.47 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 28.03.2019
Judgment/order signed by P.O. on 29.03.2019
Judgment/order uploaded on 29.03.2019
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