Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 23/19(Suit 1415/09)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.23/2019
(CNR No.MHCC010000532019)
IN
S .C. SUIT NO.1415/2009
1. Mr. Ebrahim Hassam Lambat
2. Smt. Shahida Hassam Lambat ..Plaintiffs
V/s.
1. Mr. Nandlal Suraj Prajapati
2. Mr. Sajid Ebrahim Khan ..Defendants
Appearance:
Adv. Mr. Kadam for plaintiffs.
Adv. Mr. Ashok Maru for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 4.12.2019.
ORAL ORDER
1. Perused Notice of Motion(N/M), supported by an affidavit
of Nandlal Prajapati (defendant no.1 in the suit). The plaintiff has
opposed the Motion by submitting affidavit in reply on record. Seen and
considered the same.
2. I have heard Ld. Counsels for both sides on the Motion.
3. The defendant no.1 has taken out this Motion praying for
setting aside order of closure of evidence of defendants dated
15.11.2018. It is submitted by Ld. Counsel for the defendant no.1 that,
the defendants have filed WS in the suit and are contesting the Suit.
The defendants are relying on the WS whenever necessary, while
deciding this Motion. It is submitted that, on 15.11.2018, case was fixed
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for further evidence of defendants, but due to oversight the matter
could not be attended in time. Ld Counsel for the defendants submitted
that, by the time the advocate reached the court at around 1.30 pm, the
court had already passed 'no evidence' order and matter was kept for
arguments. Ld. Counsel further submitted that, the defendant no.1 was
suffering from illhealth and staying at his native place and in his
absence, his son was attending the matter. However, on 15.11.2018 his
son could not attend the court in time due to his bank examination for a
job.
4. On the above factual background, it is urged that, absence
of Counsel for the defendant no.1 before court on 15.11.2018 was not
deliberate or intentional but due to the reasons stated above. Under the
above circumstances, in the interest of justice, it is necessary to set aside
the evidence closure order of the defendants dated 15.11.2018 and
allow the defendants to lead evidence in the case. If Motion is allowed,
no prejudice will be caused to the plaintiff. On the other hand, if the
Motion is not accepted by the court, then the defendants will suffer
irreparable loss, which cannot be compensated in terms of money and
also he will not get an opportunity to defend his case.
5. Per contra, Ld. Counsel for the plaintiff has strongly
opposed the Motion and relied on the affidavit in reply submitted by
Mr. Muslim Asgar Umrethwala, Manager and C.A of M/s. H.A. Karolia &
Sons, its partner etc. It is submitted that the Motion filed by defendant
no.1 is nothing but an attempt to delay the proceedings in the case. It is
false, frivolous, vague, vexatious and not maintainable in law and liable
to be dismissed with costs. It is submitted that, the N/M taken out by
the defendant no.1 is barred by limitation and on this ground itself, it is
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liable to be dismissed. On merit, it is submitted that, on 15.11.2018, the
matter was kept for defendants' evidence and Ld. Counsel for the
defendants was aware of said date, but he reached the court at around
1.30 pm. Therefore, the ground stated by the defendant that due to
oversight the matter could not be attended in time cannot be accepted.
The cause stated in the Motion and affidavit in support of the Motion is
not sufficient to condone the lapses on the part of defendants and their
Counsel. Another reason that the son of the defendant no.1 could not
attend the court due to his bank examination cannot be accepted as
some other arrangement could have been made. Under the above
circumstances, it is submitted that, the Motion is liable to be dismissed
with costs.
6. I have gone through the Motion and supporting affidavit as
well as affidavit in reply filed on behalf of the plaintiff. The grounds
stated in the Motion supported by the affidavit by Nandlal Prajapati
shows that due to illhealth, defendant no.1 was staying in his native
place and his son was attending the matter but due to his bank
examination, he could not appear in the matter in the morning hours
and advocate for the defendant no.1 had reached the court at around
1.30 pm when this court had already passed an order of closure of
evidence of defendants. Thus, it is clear that the advocate for the
defendant had attended the matter on the date fixed for evidence of the
defendants but only the aspect to be considered is that, why he could
not attend the court well within time and therefore, evidence close
order has been passed. The case is old and pending since 2009. The
parties to the proceedings are above 55 yrs. Considering overall
circumstances and reasons given by defendants in the N/M for not
attending the matter within time by Ld. Counsel for the defendants, I
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am of the opinion that, the Motion can be allowed subject to some
reasonable costs so as to compensate the delay on the part of
defendants. Hence, I proceed to pass following order :
ORDER
Notice of Motion No.23/2019 is hereby allowed and
made absolute in following terms:
1. The evidence close order passed against defendants
on 15.11.2018 shall stand set aside on defendants
paying costs of Rs. 2,000/ to the plaintiffs/depositing
the same in the court within three weeks from today.
2. If the defendants comply with the above directions/
order of the court and pay/deposit the costs within
time, the evidence close order passed against
defendants on 15.11.2018 shall stand set aside and
defendants shall be permitted to lead oral evidence in
the case.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 4.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 4.12.2019
Typed on : 5.12.2019
Signed by HHJ on : 6.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 7.12.19
TIME: 1133 am (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 4.12.19
Judgment/ order signed by P.O on 6.12.19
Judgment/ order uploaded on 7.12.19
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