Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1057/19 in Suit 1856/13
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1057/2019
(CNR NO. MHCC01MHCC010027532019)
IN
S.C. SUIT NO.1856/2013
Smt. Deepashri Dilip Pawaskar ...Plaintiff
Versus
1. Rajan Dashrath Navghare
2. Sanjay Dashrath Navghare
3. Vijay Dashrath Navghare
4. Buildarch Land Developers Pvt. Ltd. ...Defendants
Appearances :
Adv. Mr.S.S. Redekar for plaintiff.
Adv. Mr Anish Deshpande for defendant no.1.
Adv. Mr. H.P Pandey for defendant no.3.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 07.10.2021.
ORDER
1. Defendant no.3 has filed instant Notice of Motion for
setting aside an order dated 6.2.2019 by which 'no cross' order was
passed.
2. It is contended by the defendant no.3 that, in pursuance of
appointment of Court Commissioner for recording of evidence of PW1,
matter was fixed before the Court Commissioner for crossexamination.
That day, the defendant no.1 and his entire family went to Panchadev
Pahad, (Kuruvapuram) Mandal, Telangana to visit their Guruji. On that
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day, no instructions were given to his advocate to take cross
examination of PW1. Therefore, his advocate did not appear to take
crossexamination of the plaintiff before Court Commissioner.
Therefore, on 6.2.2019, 'no cross' order was passed against him.
Therefore, the defendant no.1 prayed for recalling of the order.
3. He further contended that, in the event the said order is not
recalled, great harm and prejudice will be caused to him, which cannot
be compensated in terms of money.
4. The Notice of Motion is opposed by the plaintiff by filing
say. It is contended by the plaintiff that, as the plaintiff had undergone
surgery and was hospitalized between October 2018 to February 2019,
therefore she was unable to attend the matter for crossexamination.
Thus, the Court Commissioner was appointed. The defendant in order
to delay the proceeding, purposefully did not appear nor his advocate
had appeared to crossexamine the plaintiff.
5. It is further contended that, the defendant no.3 gave a false
and concocted story. If really they had been to Telangana, the defendant
no.3 could have filed traveling tickets. The aforesaid conduct clearly
goes to show that, the defendant somehow wanted to prolong the
matter only to deny the legitimate claim of the plaintiff. Therefore, the
plaintiff prayed for dismissal of the Notice of Motion.
6. Heard both sides. Perused Motion, reply as well as entire
Roznama of the proceedings. The plaintiff has filed instant suit for
partition and separate possession in the suit property. The defendant
nos.1 and 3 both took similar defence that, during the lifetime of their
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father, the plaintiff had received share in the immovable property by
way of tenancy rights of room no.4,which is now redeveloped and the
plaintiff is in possession of room no.302.
7. The defendant no.1 also filed Notice of Motion No.1523/
2020 for setting aside 'no WS' order against him. In the order of
aforesaid Motion, I have specifically observed that, the defendant nos.1
and 3, in collusion, purposefully trying to delay the proceeding. Even
the defendant no.3 failed to file any documentary evidence to show that
when the matter was fixed before Court Commissioner for cross
examination, they were traveling. Moreover, it is responsibility and
duty of every advocate who is representing their clients to attend every
date either before Commissioner or before court. The aforesaid conduct
shows that, purposefully the defendant no.3 and his advocate did not
appear to crossexamine the witness. The witness is not keeping good
health, therefore she prayed for recording her evidence before Court
Commissioner. Because of the conduct of the defendant no.3 and his
advocate, she was put to financial burden as well as mental harassment.
8. In fact, the conduct of the defendant no.3 and his advocate
do not entail any leniency but as every suit is to be decided on merits,
this court can allow the defendant no.3 to crossexamine the witness
subject to condition of payment of compensatory costs as well to pay
the Court Commissioner charges of Rs.2500/ which was incurred by
the plaintiff, with further direction that the defendant nos.1 and 3 shall
complete their crossexamination on next date either before Court
Commissioner or before the court. Thus, I proceed to pass following
order :
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ORDER
1. Notice of Motion No.1057/2019 is allowed.
2. The order dated 6.2.2019 is recalled subject to the condition
of payment of costs of Rs.15,000/ by the defendant no.3 to
the plaintiff and also to pay Court Commissioner charges of
Rs.2500/, which were already paid by the plaintiff.
In the event the plaintiff is unable to attend the
court for crossexamination, her crossexamination shall be
conducted before Court Commissioner named by the
consent of the parties within a single day upon expenses of
the defendant nos.1 and 3.
3. Defendant no.3 to comply with the payment of costs within
a period of 15 days from the date of the order. In the event
of failure to comply, the matter will be posted for final
hearing.
4. Defendant no.3 to bear the costs of the Motion.
5. In view of above, the Notice of Motion is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 7.10.2021 Greater Bombay.
Dictated on : 7.10.2021
Typed on : 7.10.2021
Draft Submitted on : 7.10.2021
Signed on : 8.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
8.10.2021, at 3 p.m (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 7.10.2021
JUDGMENT/ORDER signed by P.O. on 8/10/2021
JUDGMENT/ORDER uploaded on 8/10/2021
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