Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.561 OF 2018
IN
S.C.SUIT NO.3346 OF 2009
(HIGH COURT SUIT NO.8489 OF 2009)
(CNR No.MHCC010021312018)
Brig. Narayan Nayak (Retired) ...Applicant/Defendant
Mrs. Rukmini Bhuyan Shah ...Plaintiff
Versus
Brig. Narayan Nayak (Retired) ... Defendant
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 8th August, 2019
Adv. Mr. M.D.Pandey for plaintiff.
Adv. Mr.Heeralal Chaturvedi for Defendant.
ORDER
1. This Notice of Motion is taken out by defendant for setting
aside no cross order dated 07.12.2017 passed by this Court against
defendant. This Notice of Motion is taken out by defendant and in its
support his advocate on record Mr. Heeralal Chaturvedi, has filed his
affidavit and contended that, in between 06/12/2017 to 13/12/2017,
he was at New Delhi for attending the matter from Hon'ble Apex Court.
On 07/12/2017, the suit was before this, on that day Mr.Heeralal
Chaturvedi has filed an application 9A of Code of Civil Procedure.
However, Court has passed “no cross” order against defendant.
According to advocate Mr.Heeralal Chaturvedi, no cross order is
necessary to be set aside. Advocate Mr.Heeralal Chaturvedi has filed on
record Railway Ticket, Air Ticket obtained by him for going to the
-- 1 of 4 --
:2: NM.561/18 IN SUIT3346/2009
hon'ble Apex Court. Therefore, Mr. Heeralal Chaturvedi, accordingly
taken out Notice of Motion is made absolute.
2. Plaintiff Mrs. Rukmini Bhuyan Shah has resisted Notice of
Motion, by filing her affidavit and reply and contended that this Notice
of Motion is taken out with intention to delay the matter. It is further
contended that the, plaintiff is not knowing that defence advocate was
out of station or not. Hence, plaintiff has prayed to dismiss the Notice of
Motion.
3. Heard Ld. Advocate Mr. Heeralal Chaturvedi for defendant and
Ld. advocate Mr. M.D.Pandey for plaintiff. It is pointed out by plaintiff's
advocate that this Notice of Motion is not filed by defendant, but, it is
filed by defendant's advocate and therefore according to the plaintiff's
advocate, Notice of Motion is necessary to be dismissed as advocate
Mr.Heeralal Chaturvedi is not party to the suit, but he is advocate for
the defendant. In reply advocate Mr.Heeralal Chaturvedi submitted that
he has filed this Notice of Motion as facts mentioned in affidavit filed in
support of Notice of Motion are known to advocate Mr.Heeralal
Chaturvedi only. I have given serious consideration to arguments
advanced. Even, though facts mentioned in the affidavit filed in support
of Notice of Motion are known to advocate Mr.Heeralal Chaturvedi
only, advocate Mr.Heeralal Chaturvedi was not excepted to file this
Notice of Motion as, he is not party to this suit. On hearing the
argument, it is noticed by me that defendant is intending to get set
aside the no cross order passed against the defendant. However, as this
Notice of Motion is not filed by the defendant, prayer made in Notice of
Motion can not be granted. It is made clear, if defendant himself will
file the Notice of Motion for prayer made in this Notice of Motion, it can
-- 2 of 4 --
:3: NM.561/18 IN SUIT3346/2009
be considered on merits by giving opportunity to plaintiff to reply it.
Hence, I proceed to pass the following order.
O R D E R
1. Notice of Motion No.561 of 2018 stands disposed off/dismissed
with liberty to defendant to file fresh Notice of Motion for making
prayers made in this Notice of Motion. However, it is made clear that
such fresh Notice of Motion should be filed by defendant himself and
affidavit to be filed in support of said Notice of Motion should be
affirmed by defendant himself only.
08/08/2019 (K.P.NANDEDKAR)
JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 08/08/2019
Transcribed on : 08/08/2019
Signed by HHJ on : 27/08/2019
-- 3 of 4 --
:4: NM.561/18 IN SUIT3346/2009
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
27/08/2019 4.30PM Gopal N. Sutar
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgement/Order. 08/08/2019
Judgement/order signed by P.O on 08/08/2019
Judgement/order uploaded on 27/08/2019
-- 4 of 4 --