Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.187/2019 ..1.. Suit No.9918/1988
CNR No.MHCC010005242019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.187 OF 2019
IN
SUIT NO.9918 OF 1988
Lorna Trimothy D'Souza .. Plaintiff
Versus
Andheri Om Niketan CHS Ltd. .. Defendant
Pamela Dalal, advocate for plaintiff.
Neha Yadav, advocate for defendant.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 4th March 2019
ORAL ORDER
Notice of motion is taken out by defendant to recall plaintiff i.e.
PW1 Lorna D'souza for cross examination under Order 18 Rule 17 of
the Code of Civil Procedure.
2. It is the contention of defendant that their advocate through
oversight failed to cross examine PW1 on one important issue in
present suit. It came to notice of defendant through their Secretary
immediately after cross examination of plaintiff was over. Thereafter
Secretary of defendant sent Email to the Commissioner on 15.12.2018
and to plaintiff. On 17.12.2018 Commissioner replied to their advocate
and submitted that since cross examination of plaintiff is closed on
14.12.2018, defendant has to obtain direction from this Court to ask
further question to the plaintiff's witness. It is further contended that
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defendant has good case on merits and therefore, in order to determine
real question in dispute between the parties cross examination of PW1
by the defendant is necessary. Accordingly, defendant has requested to
allow notice of motion.
3. Plaintiff has filed her reply and opposed notice of motion on the
count that ample opportunity has been given to the defendant to cross
examine plaintiff and so, there is no question of granting further
opportunity to cross examine her. Accordingly, she prayed for dismissal
of notice of motion.
4. Heard counsel for respective parties. During the course of
argument, advocate for defendant submitted that defendant wants to
put question only in relation to document i.e. Exh.A i.e. letter dated 19th
May, 1981 (Exh.12 collectively) and that can be done before this Court.
Accordingly she urged to allow notice of motion.
5. On the other hand learned advocate for plaintiff submitted that
sufficient opportunity is given to the defendant to cross examine PW1
so no further chance be given to defendant. Accordingly she submitted
the notice of motion be dismissed.
6. It is apparent that cross examination of PW1 Lorna D'souza has
been recorded on commission and it was completed on 14th December,
2018. Present notice of motion is taken out by defendant on 15th
January, 2019. It cannot be said that defendant approached belatedly
for seeking permission to recall PW1 Lorna. In other words, it can be
said that they promptly approached to the Court seeking recall of PW1.
This shows bonafide on the part of defendant. Defendant has
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contended that due to oversight their advocate failed to cross examine
PW1 on one important issue and during course of argument advocate
for defendant pointed out that they want to cross examine only on
certified copy of letter dated 19th May, 1981 (Exh.12 collectively). Thus,
defendant has attributed fault to their advocate, I am of the view that
for the fault of advocate party should not suffer. Keeping in view above
facts and in the interest of justice and fair trial in the light of provisions
of Order 18 Rule 17 of CPC I am inclined to allow notice of motion to
recall PW1 Lorna D'souza for cross examination by advocate for
defendant. However, such cross examination shall be restricted only to
certified copy of letter dated 19.05.1981 and same has to be conducted
within period of 15 days from the date of this order without fail and
that too, before the Court. Considering that matter is more than 25
years old and in order to compensate plaintiff it is just to impose costs
upon defendant. Hence, pass following order :
ORDER
1. Notice of Motion No.187 of 2019 is allowed and made absolute
in terms of prayer clause (a) subject to payment of costs of Rs.2000/ to
the plaintiff within period of seven days from the date of this order.
2. On payment of costs, defendant is allowed to cross examine
PW1 Lorna D'Souza only on the point of certified copy of letter dated
19.05.1981 within period of 15 days from the date of this order without
fail, in the Court.
Accordingly, notice of motion stands disposed off.
(M. T. Asim)
Judge
Date : 04.03.2019 Gr. Bombay
Typed on : 04.03.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06.03.2019, 4.00 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
04.03.2019
JUDGMENT/ORDER signed by P.O.
on
05.03.2019
JUDGMENT/ORDER uploaded on 06.03.2019
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