Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.777-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.777 OF 2020
IN
S.C. SUIT NO.713 OF 2010
CNR NO.MHCC01-002131-2020
Shriram Kailash Jaiswar … Plaintiff
Vs.
Anil Baliram Singh & Ors. … Defendants
Appearances:
Ld. Adv Bharati Laskar for plaintiff.
Ld. Adv Abhay Parab for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATE : 17th MARCH 2021
ORAL ORDER
Defendant No.1 has taken out this notice of motion for
setting aside the “No cross” order dated 19.11.2019.
2. Heard the learned advocate for the parties. Perused the
record.
3. On 05.02.2019, the plaintiff filed the affidavit in lieu of
examination in chief at Exh.9. Thereafter, the matter was adjourned
from time to time for admission and denial. On 14.10.2019, documents
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NM No.777-2020
came to be exhibited, and the matter was posted on 19.11.2019 for
cross-examination of the plaintiff. However, on that date, defendant
No.1 and his advocate had remained absent. Hence, his right to cross-
examine the plaintiff came to be forfeited.
4. Defendant No.1 in his affidavit in support of the notice of
motion has asserted that on 19.11.2019, his advocate was held up in
the High Court before Hon’ble Justice Shri. P. N. Deshmukh in ALP
No.148 of 2017, and therefore, he could not attend this Court on that
date.
5. As per Order XVII Rule 2(c) and (d) of CPC, the reason
assigned by defendant No.1 for the absence of his advocate on
19.11.2019 before this Court cannot be said to be plausible.
6. Even assuming that on 19.11.2019, the learned Advocate
for defendant No.1 was held up before High Court, defendant No.1
could have attended this Court to bring that fact to the notice of this
Court. However, he also was absent on that date.
7. Defendant No.1 has filed the present notice of motion on
15.02.2020. It is, thus, manifest that defendant No.1 has not promptly
filed this notice motion to set aside the order dated 19.11.2019. He has
not explained the delay in filing the present notice of motion. As such,
the notice of motion is in fact liable to be dismissed. However, in order
to decide the suit on merits and to avoid multiplicity of the proceedings,
to my mind, it is expedient in the interest of justice to allow defendant
No.1 to cross-examine the plaintiff by setting aside the “no cross” order
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NM No.777-2020
dated 19.11.2019. However, it is necessary to saddle him with
exemplary costs for his failure and negligence to cross-examine the
plaintiff on 19.11.2019 and the delay caused by him in the trial.
Accordingly, I hold that notice of motion deserves to be allowed subject
to costs of Rs.3,000/- and proceed to pass the following order:
ORDER
1. Notice of Motion No.777 of 2020 is made
absolute in terms of clause (a) subject to costs of
Rs.3,000/- which shall be paid to the plaintiff.
2. Notice of Motion No.777 of 2020 is
accordingly disposed of.
Sd/-
R. S. PAVASKAR
Judge,
Date : 17/03/2021 City Civil Court, Gr. Bombay
Dictated on : 17/03/2021
Transcribed on : 17/03/2021
HHJ signed on : 17/03/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
18.03.2021 12.59 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
Date of Pronouncement of
JUDGEMENT /ORDER
17.03.2021
JUDGEMENT /ORDER signed by
P.O. on
17.03.2021
JUDGEMENT /ORDER uploaded
on
18.03.2021
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