Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.172 OF 2020
IN
SUIT NO.9795 OF 1982
Mr.Koshy Kuruvilla and ors ..Plaintiffs
V/s
Nevin J.Sequira and ors ..Defendants
Adv. Gaurav Shukla h/f adv. Narayanan for plaintiffs
Adv. Thapa for defendant nos.8 and 9
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 11/03/2020
ORAL ORDER
1. This notice of motion is tendered by plaintiffs for
setting aside order dated 05/12/2019 and to allow
the plaintiff to lead further evidence.
2. Ld. Counsel for the plaintiffs submitted that cross
examination of PW-2 adv. Pradeep Rajagopal was
completed on 22/11/2019 and the matter was
adjourned to 05/12/2019 for further evidence of the
plaintiff.
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3. The plaintiffs were unable to serve the proceedings
upon defendant nos.1 and 2 and trying to find an
alternate address of defendant nos.1 and 2 so as to
serve upon them the notice under order 12 rule 2 of
the CPC in the above proceedings. On 05/12/2019,
advocate for the plaintiffs appeared and sought
adjournment and the same came to be rejected and
the evidence of the plaintiff was closed. On
05/12/2019 after the matter was adjourned, the
advocate of plaintiff could locate the address and the
contact details of defendant nos.1 and 2 in The USA
and served them a notice under order XII rule 2 of
the CPC. The copies were served to defendant nos.1
and 2. Ld. Counsel for the plaintiffs submitted that
admission from defendant nos.1 and 2 is of
importance and would assist the plaintiffs in proving
their case and therefore the order dated 05/12/2019
is required to be set aside.
4. The defendant nos.8 and 9 opposed the present
notice of motion. It is the contention of defendant
nos.8 and 9 that relief sought is after thought and
suffers from latches and delay. The plaintiff has
sought to set aside order dated 05/12/2019. The
cross examination of PW-1 was concluded on
21/08/2019. On 16/12/2019, plaintiffs through
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their advocate and in the present of plaintiff no.1(c)
sought time to file their say to the document
produced by defendant nos.8 and 9 and reply to
Ex.50. The issues were framed on 29/11/2018. The
plaintiffs have given list of witnesses on 10/01/2018.
The plaintiff has filed examination in chief on
10/01/2018 and also filed additional affidavit of
evidence on 30/01/2018. The plaintiff has taken
considerable time after the evidence of PW-1 was
completed. The evidence of PW-2 was completed on
22/11/2019. The plaintiffs have not made out any
case for grant of this notice of motion. The notice
under order XII Rule 2 of C.P.C. is belatedly given on
05/12/2019. Hence, prayed for dismissal of the
notice of motion.
5. The plaintiffs have filed rejoinder and denied the
contentions of the defendants.
6. Ld. Counsel for defendant nos.8 and 9 placed
reliance upon the judgment of Hon’ble Apex Court in
the case of Vadiraj Naggappa Vernekar (dead)
through Lrs V/s Sharadchandra Prabhakar Gogate,
(2009) 4 Supreme Court Cases 410. The Hon’ble
Apex Court held that Or.18 R.17 is not intended to be
used to fill up omissions in the evidence of a witness
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who has already been examined. O.18 R.17 of CPC is
pertaining to the calling of the witness who has been
examined in order to put certain questions. Here in
this case by way of notice of motion, the plaintiffs do
not wish to examine themselves. The limited relief
which is sought is for permitting the plaintiffs to
adduce further evidence. Therefore, the ratio cited
with greatest of respect is not applicable in the
present facts and circumstances of the case.
7. The matter is of the year 1982. The issues in the
matter were recasted on 29/11/2018. The plaintiffs
have filed affidavit of evidence on 10/01/2018. The
plaintiffs filed additional affidavit of evidence. The
cross examination of PW-1 was completed on
21/08/2019. On 23/09/2019, the affidavit of
evidence of PW-2 was filed. Cross examination of
PW-2 was completed on 22/11/2019. Subsequently
the matter was adjourned to 05/12/2019. On that
day, plaintiff sought time for adducing evidence,
which was rejected. The evidence of the defendants
is not yet open. In dealing such notice of motion,
there should not be hyper technical and pedantic
approach . The issuance of notice under order 12
Rule 2 to defendant no.1 or defendant no.2 is not a
question for consideration in the present notice of
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motion. This Court is a trial Court. The plaintiffs
wish to adduce further evidence and in the interest of
justice, this notice of motion requires consideration.
The matter is old and therefore the plaintiffs are
required to pay costs to defendant nos.8 and 9. In
view of the above discussion, it is expedient to pass
following order:-
ORDER
1.N/M No.172/2020 is allowed in terms of prayer
clause(a) and (b) subject to cost of Rs.3,000/- to
be paid by plaintiffs to defendant nos.8 and 9 on
or before next date.
2. N/M No.172/2020 is disposed off accordingly.
11/03/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 11/03/2020
Typed on : 19/09/2020
Signed on : 21/09/2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
22/09/20 at 02.16 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
11/03/2020
Judgment and order signed by P.O. 21/09/2020
Judgment/order uploaded on 22/09/2020
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