Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 804/19 in Suit 3650/13
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.804/2019
(CNR No.MHCC010020802019)
IN
S.C. SUIT NO. 3650/2013
Smt. Veena Madanlal Bindra ..Plaintiff
V/s.
1. Dr. Sanjay Madanlal Bindra,
2. Mr. Bharat Madanlal Bindra
3. Mrs. Indu Manoj Bindra
4. Manoj Madanlal Bindra. ..Defendants
Appearance:
Adv. Mr. Tembe for plaintiff.
Adv. Mr. Aniket Ranade for defendants no.3 & 4.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 29.11.2019.
ORAL ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
filed by Mrs.Indu Bindra (defendant no.3) and affidavit in reply filed by
plaintiff Mrs. Veena Bindra, opposing the Motion.
2. I have heard Ld. Counsel for the defendant no.3 and
plaintif respectively on the Motion.
3. Ld. Counsel for the defendant no.3 submitted that, present
suit has been filed by wife of late Madanlal Bindra and the plaintiff is
seeking relief of partition and separate possession in joint family
propertly belonging to late Madanlal Bindra. Defendant no.3 and 4 are
daughter in law and son of the plaintiff respectively. It is submitted
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that, the suit was fixed for crossexamination of the plaintiff. After no
cross order was set aside, the defendant no.3 had engaged her advocate
only for the purpose of conducting the case at pretrial stage. For the
purpose of trial of the case, she was intending to engage some
experienced advocate, who usually conducts trial of civil suit in this
court. However, due to some miscommunication between her and her
Counsel, she could not engage such experienced lawyer for the purpose
of crossexamination and defendant no.3 has tendered an unconditional
apology for the lapse on her part and has prayed that, the 'no cross'
order deserves to be set aside in the interest of justice, otherwise the
defendant no.3 will suffer irreparable loss which cannot be
compensated in terms of money.
4. Ld. Counsel for the plaintiff has strongly opposed the
Motion and relied on the affidavit in reply filed by the plaintiff. He
submitted that, the approach of defendants no.3 and 4 in the present
suit is very casual and they are responsible for passing of 'no cross' order
by the court. Ld. Counsel referred to Roznama dated 13.4.2018 and
19.10.2018 and submitted that, the defendants no.3 and 4 are
contesting parties in the suit. They had knowledge about passing of the
order by this court regarding no cross of the plaintiff. They have failed
to take necessary steps to get that order set aside. As per order dated
19.10.2018, evidence of defendants no.3 and 4 have been closed and
matter has been posted for final argument.
5. In January 2019, matter was on board for final argument
when Counsel for the defendants no.3 and 4 appeared and sought
adjournment on the ground of personal difficulty of the advocate. On
7.2.2019, defendant no.4 had taken out present N/M to recall the order
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3 N/M 804/19 in Suit 3650/13
of no crossexamination dated 13.4.2018. Ld. Counsel for the plaintiff
submitted that, the plaintiff is a senior citizen aged about 72 yrs. and by
delaying tactices of the defendants he has been harassed. The
defendants no.3 and 4 have not filed any application for condonation of
delay as there is delay of more than 270 days in taking out N/M. On
this ground itself, the Motion is liable to be dismissed. Defendant no.3
has signed affidavit for herself and on behalf of defendant no.4, but no
authority is filed on record in this respect. Hence, it is prayed that the
Motion taken out by the defendants no.3 and 4 is devoid of merit and it
is liable to be dismissed.
6. I have gone through the Motion and supporting affidavit as
well as affidavit in reply filed on behalf of the plaintiff. I have also
considered oral submissions made by Ld. Counsels for the both sides. I
find that, the plaintiff is a Sr. Citizen and it is a matter of partition suit
between family members. The suit has proceeded with no cross
examination dated 13.4.2018 against defendants no.3 and 4. Present
Motion is taken by the defendants on 25.2.2019, so obviously there is
substantial delay in filing the present Motion, however considering the
nature of dispute between the parties and that the suit should be
decided on merit, I am of the opinion that, the delay in taking out the
Motion can be condoned on oral request subject to heavy costs so that
the plaintiff will be compensated in terms of money to some extent and
the defendants no.3 and 4 will get an opportunity to crossexamine the
plaintiff. Hence, following order :
ORDER
Notice of Motion No.804/2019 is hereby allowed
and made absolute in following terms :
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1. No cross order passed by this court dated
13.4.2018 shall stand set aside on defendants no.3
and 4 paying costs of Rs.5,000/ to the plaintiff/
depositing the same in the court within three weeks
from today.
2. If the defendants comply with the above order and
direction and pay/ deposit costs, the case shall
proceed for crossexamination of the plaintiff on
next date.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date:29.11.2019 Gr. Bombay (C.R. 03)
Dictated on :29.11.2019
Typed on : 30.11.2019
Signed by HHJ on : 2.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :2.12.19
TIME: 3.55 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 29.11.19
Judgment/ order signed by P.O on 2.12.19
Judgment/ order uploaded on 3.12.19
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