Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 289 OF 2019
IN
L.C. SUIT NO. 8278 OF 1995
Jaisukhlal P. Vaghani and Ors. .. Plaintiffs
Versus
M/s Shah Ratanshi Velji and Sons & Ors. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 5th February, 2019
Ms. Snehal Dukhale ld. adv. for plaintiff.
Ms. Sayali Apte, ld. adv. for defendant no. 9
Ms. Mhatre, ld. adv. for defendant /BMC.
O R D E R
1. This N/m is taken out by defendant no. 9 for fixing the date
for cross examination of plaintiff's witness by defendant no. 9. In
support of Nm defendant no. 9 Mr. Purushottam Gagwani has filed his
affidavit contending that the matter was on board on 11.10.2018 and
after cross examination of plaintiff was completed on behalf of
defendant nos. 2 and 3 matter was adjourned. It is mentioned that
advocate for defendant no. 9 was present but he was under impression
that defendant nos. 5 and 6 will continue the cross examination.
Thereafter the matter was adjourned to 19.10.2018. On 30.10.2018
plaintiff's advocate filed reexamination of P.W.1 at Exh. 88 and Court
observed that its copy was not served upon defendant therefore the
matter was adjourned to 03.11.2018 for defendant's reply to the
application of plaintiff. On 03.11.2018 application Exh. 88 was partly
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argued and matter proceeded. However on 12.11.2018 Court rejected
said application Exh. 88 and on that day plaintiff filed evidence closure
pursis. On 09.01.2019 when advocate for defendant no. 9 had taken
inspection of record of the suit it was revealed that opportunity to cross
examine plaintiff's witness by defendant no. 9 was not considered by
the Court. It is contended that the Junior advocate who was present in
the Court could not point out said fact to the Court and therefore it is
necessary to fix the matter for cross examination of P.W.1 by defendant
no. 9. It is mentioned in the affidavit that no cross order is not passed
by the Court.
2. Plaintiff has filed affidavit of reply to the Nm contending
that N/m is necessary to be dismissed on the basis of principle of
vigilantibus et non dormientibus jura subveninut because defendant no.
9 was not vigilant in the matter. According to plaintiff due to negligent
conduct of defendant no. 9 N/m is necessary to be dismissed.
3. Heard. I have perused roznama of the matter and evidence
of P.W.1 which is at Exh. 11. On perusal of deposition of P.W.1 and
roznama dated 11.10.2019 it is noticed that initially plaintiff's advocate
Mr. Satamkar was present in the Court however at 1.20 p.m. when
cross examination of P.W.1 was completed, no one was present on
behalf of defendant no. 9. Therefore Court has passed no cross order
against defendant no. 9. It seems that defendant no. 9 has filed his
affidavit without perusing the deposition of P.W.1 hence not perusing
said evidence prior to filing the affidavit in my opinion is negligent
conduct on part of defendant no. 9. Therefore while giving
opportunity to defendant no. 9, for cross examining P.W.1, I find that
cost is necessary to be directed to be paid by defendant no. 9. It is
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always better that parties should get decided matters on merits by
adducing their evidence and by facing the cross examination. In such
circumstances, for giving fair opportunity to defendant no. 9 to cross
examine P.W.1, I proceed to pass following order.
O R D E R
1. N/m No. 289/2019 is made absolute in terms of prayer (a) and
no cross order passed against defendant no.9 is set aside subject
to cost of Rs. 3000/ to be paid by defendant no. 9 to the plaintiff.
2. Even though defendant no. 9 has not prayed for setting aside no
cross order passed against him for the purpose of cross
examination of P.W.1, no cross order passed against defendant
no. 9 is set aside.
3. Plaintiff is directed to remain present on next date in Court so
that defendant no. 9 will be able to cross examine P.W.1.
(K.P.Nandedkar)
Judge,
City Civil Court,
05/02/2019 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
06/02/2019 3.15p.m. Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 05/02/2019
Judgment/order signed by P.O on 06/02/2019
Judgment/order uploaded on 06/02/2019
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