Final Order 1

Order Details: Notice of Motion
Pdf Text: 86
14/01/2022
SU.4580/13
CORAM : H.H.J. SHRI S.D. KULKARNI, (C.R.NO.08)
None for plaintiff.
Adv. Mrs. Tondwalkar for Defendant/MCGM is present.
ORDER ON NM NO.365/2020
The defendant / MCGM has filed the present NM and prayed
that the evidence closed order passed on 16.08.2019 may pleased
be set aside and defendant / MCGM be permitted to file evidence in
support of its case.
The defendant /MCGM contended that, it being a statutory
body and a vast organization, over burden with their work, so also
so many litigations pending against MCGM in the Court. Therefore,
due to transfer of the employees, so also non traceable of record,
defendant / MCGM could not file evidence within time limit. Now
defendant / MCGM has traced the entire record, therefore prayed
for permitting defendant / MCGM to file affidavit of evidence. If
defendant not permitted to adduce evidence, defendant / MCGM
would loose his legal right to defend the Suit. So, for final
adjudication of the matter, it is necessary to give chance to
defendant / MCGM to lead his evidence. Hence, defendant /
MCGM prayed that No Evidence Order passed on 16.08.2019 be set
aside and defendant / MCGM is permitted to lead evidence.
The plaintiff opposed the NM by filing reply on record. It is
alleged by the plaintiff that the defendant / MCGM not given
proper reason for condonation of delay and setting aside the order
passed against it. This Court has given several opportunities time to
time to the defendant for filing affidavit of Examination in Chief,
but all chances goes in vein. Hence, plaintiff prayed for dismissal of
NM.
Perused NM, reply filed by the plaintiff, heard both advocate
at length.
On going through the record of this case, it reveals that No
Evidence Order passed against defendant / MCGM on 16.08.2019.
The defendant / MCGM filed present NM on 04.10.2019. So it is
not the case that the defendant / MCGM moved present NM, after
the laps of considerable time. It is the matter of record that Suit is
filed in the year 2013. The contention of defendant / MCGM is that
as the matter is old one, therefore at present the concerned staff
was transferred, because matter is old one, original record was not
traceable. Therefore, delay was caused in preparing evidence and
filing affidavit on record. In my opinion, this is obvious ground and
can be believable. If defendant / MCGM not permitted to adduce
evidence, there will not be a final adjudication of the matter. To
decide the matter on merits, both parties should give an
opportunity to lead their best possible evidence. Therefore in my
opinion, defendant / MCGM entitle to lead their evidence in
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support of its W/s. Therefore, the No Evidence Order needs to be
set aside, to meet the ends of justice, therefore, defendant / MCGM
is entitled for the relief prayed by way of this NM, considering this I
pass following order
ORDER
1. Notice of Motion No.365/2020 is made absolute.
2. The order passed by this Court dated 16.08.2019 is set aside and
defendant / MCGM is permitted to file their affidavit of evidence.
3. Notice of Motion No.365/2020 is disposed off accordingly.
Adjd. to 31/01/2022 for filing evidence by defendant / MCGM /R.E (P.H.)
Judge
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