Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 743-2020 in SU-7674-2000
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.743 OF 2020
(CNR NO.MHCC01-002026-2020)
IN
SUIT NO.7674 OF 2000.
(CNR NO.MHCC01-008369-1999)
Rusi N. Bharucha @ Daruwala and Ors. }...PLAINTIFFS.
Versus
Mr.Kaikhushroo Minoo Master & Anr. }...DEFENDANTS.
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Shri.B.K.Bali, learned advocate for the plaintiffs.
Shri.Amit Shroff, learned advocate for defendant No.1.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.No.62)
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O R A L O R D E R
(Delivered on 02/09/2021)
1. By filing this Notice of Motion, plaintiffs have claimed
reliefs as under;
a. That this Hon’ble Court be pleased to recall the order of no
cross-examination dated 23rd January 2019 passed by this Hon’ble
Court.
b. That this Hon’ble Court be pleased to call the witness of
defendant No.1 for cross-examination.
2. Read the affidavit filed in support of the Notice of Motion
and affidavit-in-reply filed by defendant No.1. Heard learned Shri.B.K.
Bali advocate for the plaintiffs and learned Shri.Amit Shroff advocate
for defendant No.1. Perused the entire record.
3. Learned advocate for the plaintiffs argued that plaintiff
No.3 expired on 19/06/2015 after which, plaintiff No.1 alone was
looking after the present suit by regularly appearing the court with the
previous advocate but on account of his fall on or about 23/08/2017,
plaintiff No.1 had sustained injury to his nose which resulted in
hemorrhage due to which, plaintiff No.1 could not attend the court
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regularly thereafter. He argued that advocate on record for the plaintiffs
had informed plaintiff No.1 that since the matter has been posted for
cross-examination of witness of defendant No.1, attendance of plaintiff
No.1 in the court is not required because of which, plaintiff No.1 has
not attended the further dates but, said previous advocate informed the
plaintiff No.1 in the beginning of June 2019 that he is in process of
shifting permanently to Ahmadabad and he would not attend the
matter so also, he directed plaintiff No.1 to remain present in the court
on the next date fixed as 26/6/2019. He argued that thereafter plaintiff
No.2a approached the present advocate and engaged him. He argued
that on account of death of plaintiff No.6, Chamber Summons was
taken out on 23/07/2019 for bringing on record the HLRs which came
to be allowed on the same date. He argued that application Exh.43 filed
by defendant No.1 was decided by this court finally on 14/01/2020 and
matter was adjourned for final argument but it came to the notice for
the first time on 17/02/2020 that witness of defendant No.1 has not
been cross-examined by the previous advocate of the plaintiffs and
order of no-cross-examination has been passed on 23/01/2019 below
Exh.41. He argued that DW-1 could not be cross-examined due to the
sheer negligence on the part of the previous advocate for which, the
plaintiffs shall not be allowed to suffer and hence, Notice of Motion may
be made absolute as prayed.
4. As against this, learned advocate defendant No.1 argued
that Notice of Motion is not maintainable in view of the provisions of
Order 18 Rule 17 of Civil Procedure Code. He argued that it was the
duty of all the plaintiffs to ensure the follow up and keep track of the
matter. He argued that it is recorded in the roznama that matter was
referred to Lokadalat on 12/04/2018 and pursuant to it, some of the
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plaintiffs had visited the office of the advocate for defendant No.1 for
discussing about the possibility of settlement from which, it is clear that
those plaintiffs were fully aware of the day-to-day progress of the suit
yet they did not take proper care. He argued that order about closure of
cross-examination of DW-1 has been passed after giving several
opportunities to the plaintiffs, statements made about the negligence of
the previous advocate are not acceptable and believable as the affidavit
filed in support of the Notice of Motion itself shows that said advocate
had informed the plaintiffs by going to their residence about his
intention to shift to Ahemadabad, there is no just ground to accept the
prayers and hence, the Notice of motion is liable to be dismissed. In
support his argument, learned advocate for defendant No.1 has placed
reliance on the observations of Hon’ble Madras High Court in Order
dtd.30/03/2015 in a case of
Rajeswari Vs. Govindaraj [C.R.P.(PD)
No.1279 of 2015]. I have gone through said authority.
5. In a case of
Rajeswari Vs. Govindaraj cited above, Hon'ble
Madras High Court has laid down that Order 18 Rule 17 Civil Procedure
Code is primarily a provision enabling the court to clarify any issue or
doubt, by recalling any witness either
suo moto, or at the request of any
party, so that the court itself can put questions and elicit answers. It is
further laid down that said provision is not intended to enable the
parties to recall any witness for their further examination-in-chief or
cross-examination or to place additional material or evidence which
could not be produced when the evidence was being tendered.
6. In the matter in hands, admittedly, plaintiffs have prayed
to recall DW-1 for recording his further cross-examination. In fact, said
witness is not cross-examined at all on behalf of the plaintiffs. The right
of the plaintiffs to cross-examine said witness has been forfeited and
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plaintiffs have prayed to recall the said order. Main relief claimed in the
Notice of Motion is to recall the order passed about no cross-
examination of DW-1 on behalf of the plaintiffs. Even though, recalling
of the said order would mean that the witness of defendant No.1 is
recalled for facing cross-examination, as mentioned earlier, said witness
is not cross-examined at all on behalf of the plaintiffs and he is not
sought to be recalled to fill up the lacuna left in previous cross-
examination due to which, this court is of the opinion that the prayers
made in the present Notice of Motion would not fall within the ambit of
Order 18 Rule 17 of Civil Procedure Code.
7. Perusal of
Roznama shows that defendant has filed
affidavit in lieu of examination-in-chief of DW-1 on 08/12/2015 at
Exh.27 and additional affidavit in lieu of examination-in-chief on
15/02/2018.
Roznama dtd.26/03/2018 and 20/04/2018 show that
matter was wrongly posted for arguments. Said mistake was corrected
in Roznama dtd.04/05/2018 and matter was kept for cross-examination
of DW-1 on 14/09/2018. Entries in the
Roznama show that nobody was
present for the plaintiffs on 14/09/2018, 14/12/2018 and 23/01/2019
for cross-examining DW-1.
Roznama dtd.23/01/2020 shows that matter
was adjourned on that date to 18/02/2019 initially for recording
evidence and later on, advocate for defendant filed evidence closure
pursis at Exh.41.
Roznama dtd.18/02/2019, 04/03/2019, 03/04/2019
and 03/05/2019 show that nobody had attended the matter for and on
behalf of the plaintiffs for advancing argument. Present advocate filed
his appearance on behalf of the plaintiffs on 26/06/2019 and sought
adjournment by submitting that one of the plaintiffs is reported to be
dead hence, matter was adjourned for steps to 23/07/2019. By taking
the matter on Board by Preceipie, advocate for the plaintiffs had
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obtained leave to register Chamber Summons for bringing on record the
HLRs of deceased plaintiff No.6. Said Chamber Summons was allowed
on the same date as advocate for defendant No.1 had given his no
objection and matter was adjourned for compliance to 06/08/2019.
Application Exh.43 was taken out by defendant No.1 on 23/07/2019
itself for sending back the suit to Hon’ble High Court where it was
originally filed. Advocate for the plaintiffs filed reply to said application
on 18/09/2019 and said application came to be dismissed as per order
dtd.14/01/2020 and the matter was again posted for final arguments to
17/02/2020 on which date, this Notice of Motion is taken out for
recalling order of no cross-examination of DW-1 passed on 23/01/2019.
8. Perusal of
Roznama dtd.23/01/2019 does not specifically
show that any order of no cross examination of DW-1 is passed by the
court on that date. Application Exh.41 was filed by the advocate for
defendant No.1 on that day for closure of evidence of defendant No.1.
Perusal of said application shows that order as ‘R & R’ is passed on the
said application. Apparently, said application has been treated by the
court as evidence closure Pursis filed on behalf of defendant No.1 by his
learned advocate. Since the matter was posted for final arguments on
the subsequent date thereto, it will have to be said that the right of
plaintiff to cross-examination DW-1 has been forfeited by the court on
23/01/2019. Having gone through the
Roznama, I found force in the
argument of learned advocate for defendant No.1 several opportunities
were granted by the court to the plaintiffs to cross-examine DW-1.
However, it is a matter of record that since after forfeiture of right of
plaintiffs to cross-examine DW-1 till filing of the present Notice of
Motion, this court has considered and decided one Chamber Summons
taken out by the plaintiffs and one application Exh.43 taken out by
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defendant No.1.
9. It does not appear that plaintiffs have gained any wrongful
loss by not taking cross-examination of DW-1. Likewise, it does not
appear that there is willful default on the part of the plaintiffs in taking
out this Notice of Motion after about one year of forfeiting their right to
cross-examine DW-1. Having regards to those aspects, even though, the
right of plaintiffs to cross-examine DW-1 has been forfeited due to their
own fault, this court is of the opinion that for giving fair opportunity to
the plaintiffs to contest the suit on merits, it would be in the interest of
justice to allow them to cross-examine DW-1 with liberty to defendant
No.1 to examine more witnesses on his behalf, if he wants. Granting of
liberty to defendant No.1 to adduce further evidence will protect his
interest. Likewise since defendant No.1 cannot be faulted for the
inaction on the part of the plaintiffs to cross-examine DW-1, it would be
just to impose certain costs on the plaintiffs while accepting the prayers
made by them in the present Notice of Motion. Thus, an order.
O R D E R
N.M.No.743/2020 is allowed in terms of prayer clause “a”
and “b” subject to cost of Rs.2000/- (Two Thousand rupees). Said cost
amount shall be paid by plaintiffs to defendant No.1 directly or it shall
be deposited in the Court within two weeks from today.
After paying/depositing the amount of cost by the plaintiffs
as above, defendant No.1 shall keep DW-1 present for facing cross
examination.
Date :02/09/2021. (P.P.RAJVAIDYA)
Dictated on : 02/09/2021. Judge, C.R.No.62,
Checked on : 02/09/2021. City Civil Court,
Signed on : 02/09/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
06.09.2021 at 4.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 02/09/2021.
Order signed by P.O. on 02/09/2021.
Order uploaded on 06/09/2021.
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