Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010015572020
CNR NO. MHCC010015572020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.598 OF 2020
IN
SUMMARY SUIT NO.8062 OF 1994
(HIGH COURT SUMMARY SUIT NO. 422 OF 1994)
Bhagwan Lalji ]… Plaintiff.
V/s.
Haresh Shantichand Jhaveri ]... Defendant.
Appearances :-
Ld. Adv. Mr. A.R. Mishra for plaintiff present.
Ld.Adv. Mr. Mukari for defendant.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 27th January, 2022
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
for setting aside. No cross order dated 13.12.2019 and for putting the
matter to the stage of admission and denial of the documents.
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2. It was submitted by the defendant that the matter was
fixed for evidence of plaintiff on several dates. However, the plaintiff
sought time on several occassions on one or the other grounds. The
matter was attended by the Advocate for defendant on every date. On
13.12.2019 the Advocate for defendant could not appear. On
20.01.2020 it was revealed that no cross order has been passed.
However, it was not recorded in the Roznama. The Advocate of
defendant is appearing in the matter since the filing of the suit. He was
not served with the affidavit of evidence on behalf of the plaintiff. Thus
the order of no cross be recalled and matter be fixed for the stage of
admission and denial of the documents and opportunity be given to the
defendant to cross examine of plaintiff’s witness. If the Notice of
Motion is granted no harm, loss or injury will cause to the plaintiff
whereas defendant will suffer irreperable loss and hence, the Notice of
Motion be dismissed.
3. Plaintiff filed reply and denied the contention of defendant.
It was submitted that the Notice of Motion is not maintainable. The
defendant was absent and therefore, the matter was proceeded further.
The defendant is trying to take undue advantage of caption mentioned
in Board. It was the negligence of defendant and therefore, Notice of
Motion be dismissed.
4. Heard Learned Advocate for plaintiff. After going through
the Roznama it seems that as the plaintiff failed to adduce his evidence
and matter was fixed for dismissal order. The record shows that the
Advocate for defendant was appearing on the dates. However, on
13.12.2019 he was not present. Though there is no order on the
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Roznama for proceeding without cross-examination of defendant,
however it was passed on the affidavit of evidence. It seems that the
suit is of the year 1994 abd defendant is contesting the matter since
then. Hence, it would be appropriate to grant an opportunity to
defendant to cross-examine the plaintiff’s witness and to file reply on
the documents. If the defendant is denied the opportunity, he would
suffer serious prejudice whereas no such harm will cause to the plaintiff.
I, therefore proceed to pass the following order:
ORDER
1. The Notice of Motion No.598 of 2020 is allowed.
2. No cross order passed in the affidavit of evidence is set aside and
defendant is directed to cross examine the plaintiff witness.
3. The defendant is at liberty to file say on the documents of the
plaintiff.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 27-01-2022 City Civil Court, Gr. MUMBAI
Dictated on : 27-01-2022
Transcribed on : 28-01-2022
checked on : 28-01-2022
Signed on : 28-01-2022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.01.2022 at 02.50 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of judgment/
order
27.01.2022
Judgment/order signed by P.O. on 28.01.2022
Judgment/order uploaded on 28.01.2022
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