Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010020592019
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.788 OF 2019
IN
S.C. SUIT NO.3945 OF 2010
(HIGH COURT SUIT NO.1682 OF 2010)
Kent-Enclave Co-op.Housing Society Ltd. ]… Plaintiff
V/s.
M/s. Orthos Real Estate (P.) Ltd. ]... Defendants
Appearances :-
Mr. S.S. Bohara, Ld. Adv. for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED :7th March, 2020
ORAL ORDER
1. Plaintiff took out this Notice of Motion to set aside the
order keeping the matter for dismissal and to allow plaintiff for taking
MHCC01-2059-2019
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out an application to replace earlier evidence affidavit of Mr. Hitesh
Chawda and to permit plaintiff to file fresh / another evidence affidavit
of Mr. Bhanwarlal B. Joshi in place of Mr. Hitesh Chawda.
2. Perused the Notice of Motion, affidavit in support of Notice
of Motion, reply of defendants.
3. Copy of Notice of Motion is served to other side. Other side
did not file reply to the Notice of Motion and did not remain present.
Today also defendants and advocate of defendant both are absent.
4. In brief, it is contention of the plaintiff that earlier one Mr.
Hitesh Chawda, Committee Member of the society filed evidence
affidavit alongwith list of documents on 13.03.2015.
5. The said witness Mr. Hitesh met with the small accident.
He is not having any interest in this matter. He is not available for
cross-examination at all due to his health issue and other commitments,
therefore evidence affidavit of Mr. Hitesh be kept on record as filed.
6. The deponent Mr. Bhanwarlal was not keeping good health.
The suit was posted on 19.01.2019 for dismissal order for want of
prosecution. Therefore, order of keeping the matter for dismissal be set
aside. Plaintiff be permitted to filed fresh/ another evidence affidavit.
7. Perused evidence affidavit Exh.5 filed by PW 1 Hitesh
Chawda. Documents are marked as exhibit on 13.03.2015 on the basis
of evidence affidavit of P.W.1 Mr. Hitesh. Now according to the
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deponent Mr. Bhanwarlal, the PW 1 Mr. Hitesh is not available for cross-
examination. It is prayed in the Notice of Motion that the plaintiff be
allowed to file fresh / another affidavit. Mr. Bhanwarlal to file fresh /
another notice of Mr. Bhanwarlal in place of Mr. Hitesh Chawda. I am
of the opinion that evidence affidavit of Mr. Hitesh Chawda cannot be
replaced by filing evidence affidavit of Mr. Bhanwarlal. The effect of
evidence of affidavit of Hitesh can be decided at the final hearing of the
suit.
8. Perused Roznama dated 14.11.2018 by which it is directed
to keep the matter for dismissal on 19.01.2019. On 14.11.2018 both
the parties and their counsels were absence. According to the
Bhanwarlal he was not keeping good health. It appears that plaintiff is
interested to proceed with the matter.
9. Perused Order 9 Rule 3 of the Code of Civil Procedure. As
per the said Rule where neither party appears when the suit is called on
for hearing, the Court may make an order that the suit be dismissed.
10. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his non-appearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
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11. Hence, in the fact and circumstances the order of keeping
the matter for dismissal can be set aside. Plaintiff can be permitted to
lead evidence. The effect of evidence affidavit of Mr. Hitesh Chawda
can be decided at the final hearing of the suit. Issues are framed on
12.7.2018. Today defendant and advocate of defendant both are
absent. Hence, I proceed to pass the following order:
ORDER
NM no. 788 of 2019 is partly allowed as under-
1. Order of keeping the matter for dismissal is hereby set aside.
2. Plaintiff is permitted to lead evidence if any to support it's
contention.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 07/03/2020 City Civil Court, Gr. MUMBAI
Dictated on0 : 07/03/2020.
Transcribed on : 16/03/2020.
Draft given for
checking on : 15/05/2020.
Checked on : 15/05/2020
Due to Covid-19 lockdown, the
Court was not functioning and
therefore Signed on : 12/06/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
Due to Covid-19 lockdown, the
Court was not functioning and
therefore upload on
13.06.2020 at 02.40 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 07.03.2020
Judgment/order signed by P.O. on 12.06.2020
Judgment/order uploaded on 13.06.2020
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