Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 436-20 in Suit 370-2015
MHCC010011152020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.436 OF 2020
IN
S. C. SUIT NO.370 OF 2015
Kishore Ramesh Chalke ]
Aged: years, Occ: Lawyer, ]
R/a. Ganesh Nagar, S.P. Road, ]
Wadala, Mumbai. ].. Plaintiff.
Versus
Arun Chandrakant Chalke ]
Aged: 42 years, Occ: Agriculturist, ]
R/a. Varal, Taluka Mhasla, ]
District Raigad. ].. Defendant.
Appearance :-
Ld. Adv. Akshay Nawar @ Adv. Sameer Tendulkar for defendant.
Ld. Adv. Swapnil Dighe for defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 06/04/2024
ORDER
The present notice of Motion has been taken out by the
defendant to set aside the order passed by this Court on dated 4th
..1.
-- 1 of 5 --
2 NM 436-20 in Suit 370-2015
October 2019 wherein this Court has ordered to proceed without cross
examination of PW-1.
2. In affidavit in support of the notice of motion, the
defendant has submitted that he is an agriculturist. The suit has filed by
the plaintiff for defamation. It is also submitted that on 4th October
2019 the defendant was present before the Court, but due to the health
issue of his advocate, he could not remain present as he was unable to
travel from Roha to this Court. Due to which the cross-examination of
the PW-1 was not conducted. Therefore, the matter was proceeded
without cross-examination of the PW-1 vide order dated 4th October
2019.
3. It is further submitted that the defendant wants to cross
examine the PW-1 and seeking setting aside the no cross order. Hence
this Motion.
4. The plaintiff has not filed any written reply on this Motion,
but he opposed the present Motion orally and his statement was
recorded to that effect on 21.03.2023. He has opposed the notice of
Motion strongly on the ground that the defendant has filed this notice
of motion with ulterior motive and intention. He has further submitted
that the Court by passing reasoned order rejected the application of the
defendant for adjournment on 4th October 2019 and thereafter the
matter proceeded further without cross-examination of the PW-1.
Therefore, he prays to dismiss the notice of motion.
..2.
-- 2 of 5 --
3 NM 436-20 in Suit 370-2015
5. Perused the notice of motion and record. Heard both sides.
6. It is seen that the documents were marked on 12th October
2018. Thereafter, the matter was kept for cross examination. The
rozanama indicates that on 11th April 2019, the specific direction was
given to the defendant to proceed with the matter on next date without
fail. It is further seen that on 23rd August 2019, last chance was granted
to the defendant for cross-examination. It transpires that on 4th October
2019, the defendant was present and he has filed adjournment
application on the ground that due to the health issue his Advocate on
record was not able to attend the court. The said application was
rejected by this court. Thereafter, on 5th December 2019 the draft notice
of motion was filed for grant of Leave.
7. It is pertinent to note that the adjournment application was
rejected by this court on the ground that already last chance was
granted to the defendant for cross-examination and he failed to do
cross-examination. Admittedly, the issue of ill-health of the advocate on
record is reflected from the Roznama of 4th October 2019. The
defendant is represented by an advocate. But on that day due to the
health issue the advocate for the defendant was unable to cross-
examine the witness. It is seen that now the defendant wants to cross
examine the witness. The matter is claiming damages from the
defendant. The dispute between the parties needs to be determine once
and for all by giving the fair opportunity to both the sides. If the
defendant is not permitted to cross examine the witness, it would cause
prejudice to the defendant. Under such circumstances, I am of the view
..3.
-- 3 of 5 --
4 NM 436-20 in Suit 370-2015
that one opportunity can be granted to the defendant to cross examine
the witness.
8. Considering all the aforesaid factors, it is desirable that the
matter must be decided on merits by giving opportunity to both sides,
however, it is equally imperative to compensate the plaintiff. In such
circumstances, I proceed to pass following order:
ORDER
1. Notice of Motion No. 436 of 2020 is hereby made absolute in
prayer clause (a) subject to costs of Rs. 2000/- payable to the
plaintiff within one month from the date of order.
2. The defendant is directed after paying the costs cross examine the
plaintiffs witness without taking any adjournment.
3. The plaintiff is directed to keep present his witness on next date
for cross examination.
4. Notice of Motion No 436 of 2020 is disposed of accordingly
(Smt. Anita B. Sharma,)
Judge,
City Civil Court, Greater Bombay
Dated : 06/04/2024 C.R. No.03
Dictated on : 06/04/2024
Typed on : 10/04/2024
Signed on : 15/04/2024
..4.
-- 4 of 5 --
5 NM 436-20 in Suit 370-2015
“Certified to be true and correct copy of the original signed order”.
15/04/2024
at about p.m.
(Dastagir Babalal Mulla)
Stenographer Grade-I (Gazetted)
Court Room No.03, Gr. Bombay
Name of the Hon'ble Judge : Smt. Anita B. Sharma,
Judge, Bombay City Civil Court &
Addl. Sessions Judge,
Court Room No.03, Gr. Bombay
Date of pronouncement of
Order
: 06/04/2024
Order signed by Hon'ble Judge
on
: 15/04/2024
Order uploaded on : 15/04/2024
..5.
-- 5 of 5 --