Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 7083/02 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 52 OF 2018
IN
SUMMARY SUIT NO. 7083 OF 2002
(HIGH COURT SUMMARY SUIT NO.174 OF 2002)
Mr.Hemraj Lalchand Jain,
of Bombay, an adult, Indian
Inhabitant, carrying on business
as a sole Proprietor in the name
and style of M/s.Seth Lalchand
Hemraj & Co. and M/s.Lalchand
Hemraj & Co. at and from 108/116,
Vithalwadi, 3rd floor, Kalbadevi,
Mumbai 400002. ...Plaintiff
V/s
Mr.Manoj Gite,
of Bombay, an adult Indian
Inhabitant, carrying on business
as a Sole Proprietor in the name
and style of M/s.Manoj Gite at
and from C/o. Ashitosh Travels,
Shop No.25, Opp.Arasa Hotel,
Andheri Kurla Road, Andheri (East),
Mumbai – 400069. ..Defendant
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 09/07/2018
Adv. Mr.Jain for plaintiff.
Adv. Mr.Yogini Gurav for defendant.
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NM In SC 7083/02 Oral Order 2
ORDER BELOW NOTICE OF MOTION NO.52/18
1. This Notice of Motion is taken out by the defendant for
setting aside evidence closing order dated 03/08/2017. The plaintiff
has resisted to the said application by filing reply on record.
2. Heard. The learned advocate for the defendant has submitted
that the defendant is contesting the suit since 2002 sincerely and
without any delay on the part of defendant. It is submitted that on
25/07/2017 the case was fixed for further evidence of the plaintiff on
that day the learned advocate for the plaintiff filed the evidence closing
pursis and thereafter the matter was kept on 03/08/2017 for the
evidence of defendants. It is submitted that on 25/07/2017 the
advocate for defendant could not attend the Court as her brother was
hospitalised and undergone surgery for Hernia. It is submitted that the
advocate for defendant was staying in the Holy Spirit Hospital with her
brother Abhijit Gurav till 29/7/2017 as his brother is a Schizophrenic
patient. It is submitted that the advocate for the defendant instructed to
the Junior to attend the case and it was informed to her that the
plaintiff has taken the date for further evidence and that the case is
adjourned on 03/08/2017. It is submitted that the defendant was not
knowing about filing of the evidence closing pursis by the advocate for
plaintiff, so also, the defendant was unaware that the case was fixed on
03/08/2017 for his evidence. It is submitted that on 03/08/2017 as the
defendant did not file his evidence, the presiding Officer closed the
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evidence of defendant and kept the matter for final arguments. It is
submitted that the defendant has good case on merits and ready to co
operate to the Court for expeditious disposal of the case. It is submitted
that if the chance is not given to the defendant to lead his evidence,
injustice would cause to him and he will suffer irreparable loss,
therefore, it is requested to allow the Notice of Motion.
3. Per contra, the learned advocate for the plaintiff has
submitted that the notice of motion is taken out only with oblique
motive and with malafide intention to delay the matter. It is submitted
that the defendant did not file the evidence though the sufficient
opportunity was given, therefore, the Court has closed the evidence of
defendants. Lastly, it is requested to dismiss the Notice of Motion.
4. I have considered the above submissions of both the parties
and so also, I have gone through the case record. On the cost of
repetition, on perusal of the case record, it reveals that on 22/6/2017
the plaintiff sought the adjournment for examining the further
witnesses and the case was adjourned to 03/07/2017.
5. On 3/4/2017 it appears that the defendant was absent. The
plaintiff did not examine any further witness and filed evidence closing
pursis (Exhibit 19). Thereafter, the case was adjourned for the evidence
of defendant on 03/08/2017. It appears that on that day none was
present from the side of defendant therefore, the evidence of the
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defendant came to be closed and the matter was adjourned for final
arguments.
6. It appears that there is substance in the contention of the
defendant that they were under impression that on 25/7/2017 the
plaintiff will examine the other witness and that the defendant was
unaware regarding the evidence closing by the plaintiff as on that day
the defendant and his advocate were absent. It appears that younger
brother of advocate representing the defendant, was hospitalised in
Holy Spirit Hospital, on 24/7/2017 and was discharged from the
hospital on 29/7/2017. The applicant has filed the discharge summary
on record issued by the concerned Hospital. So also, there is nothing on
record to show that the learned advocate for the defendant informed to
the defendant to remain present for giving the evidence on 03/08/2017
it appears that since 2002, the defendant is contesting the suit and
attending the Court regularly, therefore, if the proper opportunity from
giving the evidence is not given to the defendant, serious prejudice
would cause to him.
7. Thus, considering all facts and circumstances on record, so
also considering the submissions of the learned advocate for defendant
that the defendant will cooperate to the Court for the expeditious
disposal of the case. So also, the plaintiff has not pointed out that the
defendant sought any single adjournment for his evidence, in the
circumstances the interest of justice requires to allow the defendant to
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produce his evidence. Hence, the Notice of Motion needs to be made
absolute and accordingly following order :
ORDER
1. Notice of Motion no. 52/18 is allowed.
2. The defendants evidence closing order dated 03/08/2017 is hereby
set aside, subject to costs of Rs.2000/.
3. The defendant is permitted to adduce his evidence and to co
operate to the Court for the early disposal of the case.
4. If the defendant makes default in the payment of costs amount,
this Notice of Motion shall be treated as dismissed.
(M.M.UMAR)
Judge,
09/07/2018 City Civil Court, Gr. Mumbai
Date of Dictation : 09/07/18.
Date of Transcription : 09/07/18.
Date of signature : 16/07/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
17.07.18 12.00 a.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri MM Umar (CR
No.28)
Date of Pronouncement of
Judgement/Order.
09.07.18
Judgement/order signed by P.O on 16.07.18
Judgement/order uploaded on 17.07.18
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