Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 137/19 in NM 4130/17
in Suit No. 7751/2004 1
Date : 18.07.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 137 OF 2019
IN
NOTICE OF MOTION NO. 4130 OF 2017
IN
SUIT NO. 7751 OF 2004
(HIGH COURT SUIT NO. 3680 OF 2002)
(CNR.NO.MHCC01000373 2019)
Pramod Chimanbhai Patel ...Plaintiff
Vs.
Lalit Constructions & Ors. ...Defendants
Appearance :
Mr. Jitendra Ahiya alongwith Rajesh Patil, Ld. Advocate for plaintiff
present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 32
Dated : 18th July, 2019.
ORDER
1. The defendants by way present Notice of Motion are seeking
to cross examine the Plaintiff.
2. The Plaintiff filed Notice of Motion No. 4130 of 2017 for
restoration of Suit No. 7751 of 2004. It is contended by the
Plaintiff that in the month of October 2016, his the then advocate
had suffered from dengue and was advised bed rest for 2 months.
In the month of September 2017 he made inquiry with his
advocate in respect of status of his matter. His advocate informed
-- 1 of 7 --
NM 137/19 in NM 4130/17
in Suit No. 7751/2004 2
him he was not keeping well therefore he could not appeared in
the matter after November 2016 and that since his father was
diagnosed with Angina/heart blockage and undergone
angiography and thereafter with dengue, it was not possible for
him to follow up or keep track of the said matter.
3. It is further contended by the Plaintiff that he made inquiry
as to the status of the matter. In 1st week of October 2017 he
came to know that the matter was dismissed for nonprosecution.
Thereafter, he took back file from his earlier advocate and handed
over the same to the present lawyer. He meet with the present
lawyer in the third week of October 2017, who has suggested him
to file restoration application. However, due to Diwali vacation, he
could not file present notice of motion immediately.
4. The notice of motion is opposed by the defendants by filling
their reply. It is contended by the defendants that the Plaintiff
failed to show sufficient cause for restoration of the suit. The
Plaintiff gave false reasons. The Plaintiff gave similar cause for
restoration of other suits. The Plaintiff has stated falsehood on
oath. Therefore, defendants wanted to cross examine the Plaintiff.
5. The present notice of motion is resisted by the Plaintiff by
filling say. Heard both the sides at length. It is argued by learned
advocate for defendants that as per section 1 of Evidence Act, the
Evidence do not include the affidavit. As per section 30 R/w Order
19 rule 2, the defendants have every right to cross examine the
-- 2 of 7 --
NM 137/19 in NM 4130/17
in Suit No. 7751/2004 3
witness. As per Order 8 Rule 9, if the suit is dismissed for non
appearance of the Plaintiff, then the Plaintiff is precluded to file
separate suit on the same cause of action against the defendants.
Therefore, a valuable right accrued in favour of defendants to
resist the restoration application to prove that there is no sufficient
cause shown by the Plaintiff to restore the suit.
6. It is further contended by the defendants that they have
seriously disputed the reasons shown by the Plaintiff as false.
Hence, they have every right to cross examine the Plaintiff to the
extent of facts stated by him in the affidavit. In support of
contentions of the defendants, the advocate for defendants relied
upon following judgments:
i. AIR 1975 ALLAHABA 398 in case of Abdul Hameed Khan
vs Mujeed Ul Hasan & others
ii. AIR 1960 SC 571 in case of Khandesh Spinning & weaving
Mills co. ltd Jalgaon vs Rashtriya Girni Kamgar Sangh,
Jalgao.
7. Per contra it is contended by the Plaintiff that the motion
filed by the defendants with intention to prolong the matter. The
defendants by way of instant motion wanted to make fishing
inquiry which cannot be allowed. It is contented by the learned
advocate for the Plaintiff that his notice of motion for restoration
of suit is an interlocutory application, for which affidavit of the
Plaintiff is sufficient. The court at the time of deciding such
application is not permitted to conduct full fledged trial. In support
-- 3 of 7 --
NM 137/19 in NM 4130/17
in Suit No. 7751/2004 4
of his contentions, the Plaintiff relied upon the following
judgments :
i. Civil Revision Application No. 457/1980 in case of
Mohanlal Jugaraj Khabiya & others vs Kamlabai &
others (Bombay High Court)
ii. AIR 2006 SC 3655 in case Purshottam Kumar Jha vs
State of Jharkhand & others
8. I have considered the rival submissions of both the
sides. It is alleged by the defendants that the Plaintiff has stated
falsehood on oath. The Plaintiff gave false reasons for restoration
of suit. The Plaintiff gave reasons of illhealth of his advocate and
also filed medical papers to support his case. It is well settled that
ordinarily all facts are to be proved by oral evidence. But the
parties can file affidavit as per Order 19 rule 3 of code. I do not
find any provisions in the code which restrict the party from cross
examining the deponent. The evidence by way of an affidavit is
permitted in order to curtail the wastage of time in prolong
evidence. At the same time, in my view, cross examining the
witness to contradict what is stated in the affidavit, is the valuable
right of the other side, which cannot be taken away by refusing the
party to cross examine the deponent. In the present case, the
Plaintiff has stated certain facts on oath. The defendants have
every right to disprove the fact stated by the Plaintiff.
-- 4 of 7 --
NM 137/19 in NM 4130/17
in Suit No. 7751/2004 5
9. The Plaintiff has relied on the judgment of Hon'ble Bombay
High Court in case of Mohanlal Jugaraj Khabiya & others vs
Kamlabai & other. I have perused the aforesaid judgment. The
facts of the aforesaid case and instant case are distinguishable. In
the aforesaid judgment, the application was filed under Order 39
rule 1 of the code. The trial court appointed the commissioner to
inspect the suit site. The trial court permitted the other side to
cross examine the commissioner as well as called upon the parties
to lead their oral evidence. The Hon'ble High Court set aside
impugned Order as the aforesaid application was for injunction,
wherein at the time of deciding the same, the court ought to have
see prima facie case and no full fledge trial is allowed. Secondly
the Hon'ble High Court specifically observed that the learned trial
court could have appointed other commissioner, in case, the report
of first commissioner was not acceptable. Hence, in such situation,
the Hon'ble High court held that the trial court ought not to have
converted the hearing of an application for interim injunction into
a full fledged hearing of suit by passing impugned order.
Therefore, with due respect, in my view the aforesaid judgment is
not applicable in the present case.
10. In my view, the defendants have every right to cross examine
the Plaintiff on the affidavit filed by him. If the defendants are
allowed to cross examine the Plaintiff no prejudice would be
caused to the Plaintiff, on the contrary, if the defendants are
refrain from cross examining the Plaintiff that would certainly
affect their valuable right. Hence, in view of the aforesaid
-- 5 of 7 --
NM 137/19 in NM 4130/17
in Suit No. 7751/2004 6
discussion, in my view, the notice of motion needs to be allowed in
the interest of justice. Thus, I proceed to pass the following order:
ORDER
1. Notice of Motion No. 137 of 2019 is made absolute in terms
of prayer clause (a) with cost.
2. The defendants are allowed to cross examine the Plaintiff on
the facts stated in the affidavit for restoration of the suit.
3. Notice of Motion no. 137 of 2019 is disposed of accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 18.07.2019 Greater Mumbai
Directly Dictated on Computer : 18.07.2019
Draft Submitted on : 18.07.2019
Checked on : 20.07.2019
Signed on : 20.07.2019
-- 6 of 7 --
NM 137/19 in NM 4130/17
in Suit No. 7751/2004 7
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20/07/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.32)
Date of Pronouncement of
JUDGMENT/ ORDER
18/07/2019
JUDGMENT/ORDER signed by P.O.
on
20/07/2019
JUDGMENT/ORDER uploaded on 20/07/2019
-- 7 of 7 --