Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.8918 in SCSU 272109
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.89 OF 2018
(CNR No.MHCC010002452018)
IN
SHORT CAUSE SUIT NO.2721 of 2009.
(CNR No.MHCC010005562009)
Saifuddin Alibhai Lakdawala }...PLAINTIFF.
Versus
Homi Rustomji Jokhi & Ors. }...DEFENDANTS.
Plaintiff in person.
Shri.Rajas Naik, learned advocate for defendant Nos.1 & 2.
CORAM: HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 22/04/2019)
1. By filing this Notice of Motion, plaintiff has prayed to set
aside order dtd.17/02/2016 passed about closure of evidence of the
plaintiff. Read the affidavit filed in support of Notice of Motion, reply
filed by defendant No.3 and rejoinder filed by the plaintiff. Heard the
plaintiff in person. Nobody appeared for defendants to advance
arguments hence, Notice of Motion is taken up for consideration on
merits. Perused the entire record.
2. At the first instance, it would be apposite to mention here
that the date of order mentioned in the Notice of Motion as 17/02/2016
appears to have mentioned incorrectly by mistake as said order is
passed on 17/02/2017. Plaintiff has mentioned the correct date of the
said order in the affidavit filed in support of the Notice of Motion.
3. Plaintiff in person argued that the advocate appointed by
him had failed to appear before the court, this court was vacant for
some time and hence, his advocate had lost track of the suit. He argued
that there was no intentional fault on his part in not attending the court
hence, it is necessary to set aside the said order and permit him to
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2 NM No.8918 in SCSU 272109
adduce further evidence otherwise it will cause prejudice to him.
4. Perusal of the reply filed by the defendant No.3 shows that
defendant No.3 has objected the Notice of Motion by contending that
plaintiff has raised false contentions in the supporting affidavit, plaintiff
has examined several witnesses and ample opportunities have been
given to the plaintiff to examine his witnesses yet, plaintiff went on
protracting the trial of the suit due to which, the Notice of Motion is
liable to be dismissed.
5. Perusal of the Roznama of the proceeding shows that cross
examination of plaintiff PW3 was recorded on 29/08/2016 and
thereafter, matter was adjourned for further evidence of the plaintiff.
Roznama further shows that matter was adjourned on two dates on
request of the plaintiff and thereafter, it was adjourned on two dates as
the court vacant. Apparently, there appears substance in the contention
of the plaintiff that he lost track of the suit as the court was vacant for
few days. Even though, defendant No.3 has contended that plaintiff is
trying to prolong the hearing of the suit, perusal of the Roznama shows
that even after closure of evidence of plaintiff as per order
dt.17/2/2017, defendants have not adduced evidence on their behalf in
the suit till filing of this Notice of Motion by plaintiff on 04/12/2017 i.e.
practically after about 8 months of closure of his evidence. It does not
appear that plaintiff has intentionally and deliberately avoided to
adduce further evidence in the matter and hence, I hold that plaintiff
can be permitted to adduce further evidence in the matter. Granting of
said permission to the plaintiff will not cause any prejudice to the
defendants as they will get opportunities to crossexamine the witnesses
of the plaintiff & also to adduce evidence on their behalf after the
evidence of plaintiff is closed. For these reasons, holding that plaintiff is
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entitled for the relief claimed in the Notice of Motion, I pass the
following order.
O R D E R
Notice of Motion No.89 of 2018 is allowed.
Order dtd.17/02/2017 passed about closure of plaintiff's
evidence is hereby set aside and plaintiff is permitted to adduce
further evidence with direction that he shall file the list of his
witnesses without fail on the next date.
Date: 20/04/2019. (P.P.RAJVAIDYA)
Dictated on : 20/04/2019. Judge, C.R.No.12,
Transcribed on : 22/04/2019. City Civil Court,
Checked on : : 23/04/2019. Gr.Bombay.
Signed on : 23/04/2019.
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4 NM No.8918 in SCSU 272109
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
23/04/2019 at 11.30 a.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 20/04/2019
Order signed by P.O. on 23/04/2019
Order uploaded on 23/04/2019
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