Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.310 OF 2019
IN
S.C.SUIT NO.7997 OF 2000
Smt.Mrudulaben Chhotalal Changela ... Plaintiff
Versus
1. Ms.Manju Verma,
2. Mrs.Nirmala Prabhubhai Chudasama ... Defendants
CORAM : HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 17th FEBRUARY, 2020
Mr.Dinesh Shah, learned advocate for plaintiff.
Mr.Nawaz Haindaday i/b Arshad Haindaday, ld. adv. for defendant no.1.
Mr.Sayyam Maheshwari, ld. Advocate for defendant no.2.
O R D E R
1. This notice of motion is taken out by defendant no.1 for
setting aside no evidence order dated 18/12/2018 passed against her.
2. Defendant no.1 has filed her affidavit in support of her
notice of notice contending that she was regularly attending the Court
but was not knowing the stage of the matter. Her previous advocate has
refused to appear on behalf her and has given no objection for engaging
any other lawyer, however when she was intending to tender the
affidavit of examination in chief, she came to know about order dated
18/12/2018. It is contended that her affidavit in examination in chief is
ready and she is willing to file the same on record. Hence defendant
no.1 has prayed to make absolute the notice of motion.
3. Plaintiff has resisted the notice of motion by filing her
affidavit of reply contending that defendant no.1 has not made out any
case to make absolute the notice of motion. It is alleged that defendant
no.1 has filed the notice of motion in collusion with defendant no.2
-- 1 of 4 --
:2: NM.310/19 IN SUIT-7997/2000
hence according to plaintiff the notice of motion is necessary to be
dismissed.
4. Defendant no.2 has also filed detail affidavit of reply and
resisted the notice of motion contending that after giving much
opportunity to defendant no.1 Court has passed order dated
18/12/2018, however on 30/01/2019 new advocate for defendant no.1
has appeared and undertook to file his vakalatnama. It is alleged that
defendant no.1 has changed more than 10 lawyers and this conduct of
defendant no.1 is necessary to be considered. With the help of those
contentions, defendant no.2 has prayed to dismiss the notice of motion.
5. I have heard the advocate for defendant no.1 and
defendant no.2. No one is present for plaintiff. Both the learned
lawyers for defendant nos.1 and 2 have argued on same line as per the
facts mentioned in the affidavits filed by those defendants. Advocate
for defendant no.1 submitted that affidavit of examination in chief of
defendant no.1 is ready, however, the document referred in said
affidavit is now not available for producing it before the Court.
According to advocate for defendant no.1, no prejudice will be caused
to defendant no.2 and plaintiff, if fair opportunity will be given to
defendant no.1 to adduce the evidence in the matter. Advocate for
defendant no.2 strongly submitted that considering the conduct of
defendant no.1 no lenient view should be taken and if at all Court
comes to conclusion to make absolute the notice of motion defendant
no.1 should be directed to bear heavy costs.
6. I have given serious consideration to the submissions. This
is the suit in which defendant no.2 is claiming to be bonafide purchaser
of suit property on the basis of sale transaction between defendant
-- 2 of 4 --
:3: NM.310/19 IN SUIT-7997/2000
nos.1 and 2. In such circumstances, defendant no.2 will get the fair
opportunity to cross-examine defendant no.1 and to prove the defence
raised by defendant no.2. From the reply filed by plaintiff it becomes
clear that plaintiff has firmly raised objection to this notice of motion.
At this stage, it is necessary to point out here that advocate for
defendant no.2 submitted that in this suit plaintiff and defendant no.1
are in collusion with each other, however in his reply to the notice of
motion plaintiff has alleged collusion between defendant nos.1 and 2.
Any how, if defendant no1 will be cross-examined either by defendant
no.2 or by plaintiff the truth will come forward and it is always better
for plaintiff to get contested decree. In the same way, it is always
beneficial for defendant no.2 to get proved his defence on merits.
Hence, I find that if notice of motion will be made absolute subject to
some costs no prejudice will be caused to any of the parties and the suit
will be decided on merits so that rights of the parties in suit property
will be decided and determined on merits. Hence, I proceed to pass the
following order.
O R D E R
1. Notice of Motion No.310/2019 is made absolute in terms of
prayer clauses(a) and (b) subject to cost of Rs.1,000/- to be paid
by defendant no.1 to defendant no.2 who has contested Notice of
Motion in real sense.
2. Defendant no.1 is directed to file her affidavit of examination in
chief today only, however it will be exhibited on next date,
subject to payment of cost by defendant no.1 to defendant no.2.
It is made clear that defendant no.1 further should not seek any
adjournments and should not contend that she is intending to
produce the documents.
Sd/-
(K.P.NANDEDKAR)
17/02/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 17/02/2020
Transcribed on : 11/03/2020
Signed by HHJ on : 12/03/2020
-- 3 of 4 --
:4: NM.310/19 IN SUIT-7997/2000
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
12/03/2020 01.50PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 17/02/2020
Judgment/order signed by P.O on 12/03/2020
Judgment/order uploaded on 12/03/2020
-- 4 of 4 --