Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.85118 in SU 486910
CNR No. MHCC010029362018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.851 OF 2018
IN
SUIT NO.4869 OF 2010
(HIGH COURT SUIT NO.2932 OF 2010)
Gautam A. Shah ...Plaintiff
V/s.
Mohinder Singh & Ors. ...Defendants.
Appearances:
Ld. Adv Payal for the plaintiff.
Ld. Adv C. J. Dovsoal for defendant no.1
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 29th NOVMEBER, 2018
ORDER
1. This is notice of motion taken by defendant no.1 to set aside no
cross order and to recall PW1.
2. In support of affidavit, defendant no.1 contended that his
Advocate has cross examined the plaintiff herein on 06.09.2017.
Pursuant to the said cross examination, his Advocate had impressed
upon the plaintiff the need to settle the matter and to claim possession
of the suit premises from the State of Maharashtra on the basis that the
said suit premises was purchased by availing loan from the defendant
no.4 Bank. It further contended that suit property was attached by the
State of Maharashtra on the apprehension that the same was purchased
from the proceeds of the illegal gains made by the earlier owner of the
said suit premises. It further contended that it was impressed upon the
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plaintiff herein that since the plaintiff had taken the same from a public
action, there was no reason for his application made by the Ld.
A.C.M.M. to be rejected. That the plaintiff seemed convinced about the
said fact and agreed to atleast come and meet the defendant no.1 and
explore a way out. That for this reason, his Advocate felt that he may
not be required to carry out further cross in the matter and hence,
attended his other matter listed in another court sending his associate
to take date in the present matter. Accordingly, on 06.10.2017 the said
associate of his Advocate took a date in the above matter. The said
matter came to be adjourned giving a last chance to him to cross
examine PW1 and adjourned to 21.11.2017. On 21.11.2017 his
Advocate had two matter is the NCLT that were precariously placed for
directions which needed to be essentially attended. His Advocate under
the impression that he could attend the said matters in the NCLT and
also attend the above matter before this Court. However, by the time,
his Advocate reached this Court, the morning board was over. That, he
collected the next date and left the court room not realizing that an
order of no cross was passed in the matter. Thereafter, on 18.01.2018
his Advocate reached this court at around 12.30 after attending a
matter in the DRT not knowing the fact that the order of no cross was
passed against him. That at that point of time, the plaintiff was being
cross examined by the Advocate for defendant no.4. That time,
Advocate was under the impression that he would be allowed to resume
cross examination of the plaintiff once the Advocate for the defendant
no.4 concluded examining the plaintiff. It was only after the Advocate
for the defendant no.4 concluded his examination and his Advocate
requested to cross examine the plaintiff that he came to know that an
order of no cross has already been passed in the matter on the last date.
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3. Defendant's contention is that he has given full instructions to his
Advocate to go ahead with the matter and there was no stone left
unturned by him so as to cause a hindrance to his lawyer to conduct the
matter. The defendant is neither at fault nor to be blamed or to be
affected adversely for an act committed or omitted by his lawyer. It
further contended that if no cross order is set aside, grave harm and
prejudice will be caused to him, which cannot be compensated in terms
of money. There is no harm or prejudice would be caused to the
plaintiff if order is set aside in the interest of justice. With this,
defendant prayed for setting aside no cross order dated 27.11.2017 and
be permitted to cross examine PW1.
4. Plaintiff by filing reply objected this notice of motion and
contended that notice of motion is hopelessly time barred and taken out
by the defendant no.1 with malafide intention and ulterior motive to
linger the hearing of the case. It further contended that on 07.07.2015
cross examine by the Advocate for defendant and thereafter, Advocate
for defendant remained absent therefore, Court has closed the evidence.
It further contended that the Court has rightly passed the order for no
cross therefore, notice of motion be dismissed.
5. I have heard both the parties.
6. Advocate for defendant submitted that Advocate for defendant
no.1 partly cross examined PW1. However, he was not present no
cross order was passed and defendant no.4 was cross examined the
plaintiff. He submitted that defendant contesting the suit and if his
right to cross examine plaintiff in extinguished then he will suffer grave
harm and in the interest of justice no cross order be set aside.
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7. Advocate for plaintiff submitted that there is no sufficient reason
to set aside no cross order.
8. I have gone through roznama, it shows that Advocate for
defendant no.1 partly cross on 06.09.2017and matter is adjourned to
06.10.2017. On 06.10.2017 on the oral request of Advocate for
defendant no.1 cross examination is adjourned to 21.11.2017. On
21.11.2017 none appeared for defendant nos.1 to 3 hence, no cross
order was passed against defendant nos.1 to 3 and matter was
adjourned for cross examination of defendant no.4 to 18.01.2018. On
18.01.2018 defendant no.4 cross examined PW1. On 09.02.2018
Advocate for defendant no.1 filed draft notice of motion for setting
aside no cross order. I find that suit is in respect of immovable property
and it is of 2010. It is in the interest of justice, opportunity should be
given to defendant no.1 to cross examine plaintiff. However, costs is to
be imposed on defendant no.1, which can be compensated to the
plaintiff so, I find that it is a fit case to set aside no cross order dated
27.11.2017 on costs of Rs.3,000/ to the plaintiff. Accordingly, I
proceed to pass the following order :
O R D E R
1. Notice of Motion No.851 of 2018 is allowed
2. No cross order dated 27.11.2017 is set aside and defendant no.1
is permitted to cross examine PW1 on payment of costs of Rs.3,000/
payable to the plaintiff.
3. Notice of Motion No.851 of 2018 stands disposed of accordingly.
( KALPANA S. HORE )
Judge,
Dated : 29/11/2018 City Civil Court, Gr. MUMBAI
Dictated on : 29/11/2018
Transcribed on : 29/11/2018
Signed on : 29/11/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
30.11.2018 4.39 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
29.11.2018
JUDGEMENT /ORDER signed by
P.O. on
29.11.2018
JUDGEMENT /ORDER uploaded
on
30.11.2018
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