Final Order 1

Order Details: Other
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.610 OF 2020
(CNR No.MHCC01-001574-2020)
IN
SUMMARY SUIT NO.8573 OF 1999
(HIGH COURT TRANSFERRED SUIT NO. 2441/1999)
M/s. Rainbow Advertisers,
having registered Office at 4, Ralaavas,
Rajkumar Estates, Mohili Village,
L.N. Mandir Marg, Sakinaka,
Mumbai – 400 072.
... Plaintiff
V/s.
1. M/s. Aashirwad (A Literary Sociocultural
Organization), A society registered under,
Registration of Societies Act having office at
2/20, Juhu Vishal, Juhu Scheme, 5th Road
Extension, Mumbai- 400 049.
2. Shri. Dr. Umakant Bajpai
Aged : about 80 years, Indian Inhabitant of
Mumbai,
Director of M/s. Aashirwad,
residing at : 2/20 juhu Vishal Scheme, 5th Road
Extension Juhu, Mumbai – 400 049.
3. Shri Prem Kumar Mittal
Chairman; M/s. Aashirwad
Residing at: A-1/ Punit Nagar, Opp. Sai
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2 N/M No.610/2020
in Suit No.8573 of 1999
Darshan Plot No. 3,
S.V. Road, Borivali (West),
Mumbai- 400 092.
... Defendants
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 04/12/2021
Adv. Mr. Arvind Taral for the plaintiff
Adv. Mr. K.D. Shukla for the defendant
ORAL ORDER
1. This is a notice of motion taken out by the defendants for
allowing them to cross examine plaintiff with regard to the facts
allegedly admitted in the affidavit by the plaintiff.
2. The notice of motion is replied by the plaintiff.
3. Heard respective advocates at length and perused the record.
4. It is pertinent to note that earlier the notice of motion was taken
out by the defendants as an application and the plaintiff has opposed
the same in the reply stating that only notice of motion can be
registered for the purpose of such orders. The record further shows that
the court has passed the order for registration of notice of motion.
Accordingly the application has been registered and treated as notice of
motion.
5. It is submitted by the defendants that while the plaintiff
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was under cross examination on dtd.8.10.2018, he made statement that
he will produce certificate of registration of partnership firm on next
date of hearing. Therefore, the defendants reserved their right to cross
examine plaintiff, if the documents are produced. However, the
roznama dtd. 8.10.2018 shows that the cross examination is completed.
The defendant further submitted that they had reserved their right to
continue with the cross examination after production of documents in
respect of certain admissions given in the affidavit in rejoinder filed
before Hon’ble High Court in Summons for Judgment. They need
opportunity to cross examine the plaintiff on the point of admission.
Therefore, they may be allowed to cross examine the plaintiff.
6. The plaintiff has opposed the application and submitted that on
4.1.2019 the plaintiff filed compilation of documents on record and the
court has given opportunity to the defendants to conduct cross
examination. The defendants did not cross examine the plaintiff, hence,
no cross order was passed on 17.1.2019. Further, it is submitted that
whatever contention regarding admissions made by the defendant in
the present application, relates to some different matter. The defendants
are misguiding the courts. Hence, the notice of motion may be rejected.
7. At the background of these circumstances put forth by the parties,
I have gone through the record and roznama of the case. The roznama
speaks something different. It reveals that on dtd. 8.10.2018 the cross
examination was conducted and in the cross examination plaintiff made
statement regarding production of documents requisitioned by the
defendants. However, the roznama shows that the cross examination
was noted as ‘completed’ on the same date. Therefore, apperently the
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question of reserving right for cross examination do not arise. However,
again the roznama of dtd.4.1.2019 shows that the plaintiff remained
present and produced the documents vide Exh.16. However, there is no
endorsement in the roznama that the matter has been posted for cross
examination of plaintiff. Per contra, the matter came to be posted for
plaintiff’s further evidence. However, again on dtd. 17.1.2019 the
roznama has been passed to the effect that the plaintiff, who was under
cross examination remained absent and hence no cross order is passed.
The matter then posted for further evidence.
8. The entire notings in the roznama make it clear that there is some
technical mistake in the notings and therefore the no cross order came
to be passed on 17.1.2019 curtailing right of defendants to cross
examine plaintiff though they were present and plaintiff was absent.
Secondly, the noting of dtd. 8.10.2018 shows that cross examination of
plaintiff was already completed on the same date. So that the question
of no cross order do not arise.
9. Leaving apart all these facts, it revels from the record that the
plaintiff has produced certain documents on record and the defendant
wants to cross examine the plaintiff on said documents as well as on
certain alleged admissions. The suit is for recovery of money. It is
contested by the defendants. Therefore, they has the right to contest
and cross examine the plaintiff. In such circumstances if the defendants
inclined to cross examine the plaintiff on certain points, they can do so
in the interest of justice. The object of cross examination is to get clear
clarification regarding controversial issues. The plaintiff during the
cross examination may deny the suggestions and give appropriate
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answers to the questions put to him by the opposite side. Therefore, I
hold that if the defendants are allowed to cross examine the plaintiff the
same is not going to cause any prejudice to the plaintiff and the interest
of justice will be protected. However, looking to the time exhausted
during this process, I hold that the plaintiff is entitled to get cost for the
cross examination.
10. Hence, considering the aforesaid circumstances, I hold that the
notice of motion is justified to be allowed in the interest of justice.
11. Resultantly, following order is passed:
ORDER
1. The Notice of Motion no.610/2020 is allowed.
2. The defendant nos 1 and 2 are permitted to cross examine
the plaintiff on next date subject to cost of Rs.500/- to be paid
to the plaintiff.
3. Plaintiff to remain present and make himself available for
cross examination on next date.
3. The Notice of Motion No.610/2020 is disposed of.
Date: 4.12.2021
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 4.12.2021
Typed on : 4.12.2021
Signed on : 4.12.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
4.12.2021 05.10 p.m. ( K.M.RANA)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
4.12.2021
JUDGMENT/ORDER signed by
P.O.on
4.12.2021
JUDGMENT/ORDER uploaded on 4.12.2021
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