Final Order 1

Order Details: Notice of Motion
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IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT FORT GREATER BOMBAY
NOTICE OF MOTION NO. 155 OF 2018
IN
SHORT CAUSE SUIT NO. 8556 OF 1998
(HIGH COURT SUIT NO. 5123 OF 1998)
Sabir Hussain Shariff Ahmed & Anr. .. .. Plaintiffs
Versus
M/s. Famous bakery & Ors. .. .. Defendants
Mr. V. Y. Murudkar Advocate for the Defendant nos. 2(c) to
2(d).
Mr. P. M. Shah Advocate for the Plaintiffs.
Coram : His Honour Judge
Shri. G. O. Agrawal
CR no. : 13
Dated : 8.6.2018
Oral Order:
The defendant nos. 2(c) to 2(d) have taken out this
notice of motion for setting aside no cross examination order
passed on 6.10.2017. The defendant nos. 2(c) to 2(d)
supported the notice of motion by filing affidavit of defendant
no. 2(d). The plaintiffs have filed reply thereto. Perused.
Heard learned Counsel for the defendant nos. 2(c) to 2(d)
and plaintiffs.
2. Learned Counsel for the defendant nos. 2(c) to 2(d)
has urged that on the date when the matter was fixed for
recording of evidence he was held up in High Court and the
constituted attorney of the defendant nos. 2(c) to 2(d) was in
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personal difficulty. They could not attend the suit. They are
regularly attending the matter. The nocross order is drastic
it would cause great prejudice to the rights of the defendant
nos. 2(c) to 2(d). The order be set aside. Learned Counsel for
the plaintiffs opposed the notice of motion.
3. The suit is for declaration that plaintiffs, defendant
nos. 9 and 10 are partners of M/s. Famous Bakery. The suit is
pending since more than two decays. Roznama shows that
learned Counsel for the defendant nos. 2(c) to 2(d) and their
constituted attorney are attending the suit regularly. It is a
settled proposition of law that the litigant should not suffer
due to the fault of advocate. Nocross order is quite harsh
and to the disinterest of the defendant nos. 2(c) to 2(d). For
the purpose of fair trial, it is necessary to afford an
opportunity to the defendant nos. 2(c) to 2(d) to conduct
cross examination. I, therefore, find it just and proper to set
aside the no cross examination order. The inconvenience
caused to the plaintiffs can be compensated by awarding costs
upon the defendant nos. 2 (c) to 2(d).
In the result, I passed following order:
ORDER
1. Notice of Motion no. 155 of 2018 is allowed.
2. The nocross examination order passed on 6 th October 2017
is quashed and set aside subject to payment of costs of
Rs.200/ payable to the plaintiffs.
3. The defendant nos. 2 (c) to 2(d) are allowed to conduct the
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cross examination.
4. The costs is condition precedent.
5. Notice of Motion no. 155 of 2018 stands disposed of.
Per Court : Learned Counsel for the defendant nos. 2(c) to
2(d) paid the costs to the learned Counsel for the plaintiffs.
The suit to proceed accordingly.
Dated : 8.6.2018 (G. O. Agrawal)
Judge
City Civil Court
Gr. Mumbai
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(As per office circular no.25 of 2016 and 20 of 2016, dated 20.12.2016 issued by IC Registrar)
“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
DATE & TIME OF UPLOADING NAME OF STENOGRAPHER : BHARATKUMAR NUKTE
11.6.2018 12.30 pm
Name of Steno with Post. : Bharatkumar Nukte, Stenographer (HG)
Name of the Judge (with Court no.) : HHJ Shri. G. O. Agrawal (CR no. 23)
Date of pronouncement of Judgment : 8.6.2018
Judgment signed by the P.O. on : 8.6.2018
Judgment uploaded on : 11.6.2018
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