Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010030302020
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1063 OF 2020
IN
S.C. SUIT NO.2960 OF 2010
Shri Mahendraprasad Gangaram Gupta ] … Plaintiff
V/s
1. Zahidabi Babu Fathan and Ors. ] ... Defendants
Appearances :-
Mr. M.R. Yadav, Ld. Adv. for plaintiff.
Mr. Bhagwan Mishra, Ld. Adv. for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 6th March, 2021
ORAL ORDER
1. Defendant No.2 took out this Notice of Motion for
condonation of delay and setting aside the closing cross-examination of
P.W.1 dated 22.10.2019.
MHCC010030302020
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2. Perused Notice of Motion, affidavit in support of Notice of
Motion and reply of plaintiff’s Advocate given today in handwriting on
the affidavit in support of Notice of Motion. Heard Learned Advocate
Mr. M.R. Yadav for plaintiff and Learned Advocate Mr. Bhagwan Mishra
for defendant.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No
POINTS FINDINGS
1. Whether order of closing cross
examination of P.W.1 dated 22.10.2019
can be set aside?
In the affirmative.
2. What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of defendant No.2 that defendant
No.1(a) to 1(c) were directed to take cross-examination of P.W.1 i.e.
plaintiff. Cross examination was recorded on 23.11.2017. Thereafter
matter was for cross-examination of P.W.1 Shri Mahendraprasad
Gangaram Gupta by defendant No.2. On that day cross examination
was closed as defendant and Advocate of defendant both were absent.
There is no willful negligence on the part of defendant No.2 and on the
part of Advocate of defendant No.2 for not taking cross-examination.
Therefore, the said order be set aside.
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5. There is delay of filing the Notice of Motion as defendant
No.2 and Advocate of defendant No.2 were not aware closing cross
examination Order dated 22.10.2019. They were not aware about the
said order till 02.03.2020. Hence, an opportunity be given to the
defendant No.2 to cross-examine the plaintiff P.W.1.
6. In brief, it is contention of the plaintiff that some cross-
examination is conducted on 23.11.2017. Sufficient time had given to
the defendant No.2 to take cross-examination of P.W.1. There are no
sufficient reasons for not taking cross-examination on 22.10.2019.
Hence, Notice of Motion be dismissed.
7. Perused record. Matter was for cross-examination of P.W.1
on 23.07.2019. On that day it was directed to defendant No.2 to take
cross-examination of P.W.1 on next date i.e. 13.09.2019 failing which
the cross-examination of the P.W. 1 by defendant No.2 will be closed.
8. Thereafter matter adjourned on 13.09.2019. On
13.09.2019 defendant and Advocate of defendant both were absent.
Matter adjourned on 22.10.2019. On 22.10.2019 plaintiff advocate was
present. Defendant and advocate of defendant both were absent.
Therefore, cross-examination of P.W.1 by defendant No.2 is closed.
9. Considering the nature of the suit and grounds for absence
of defendant No.2 and advocate of defendant No.2 on 22.10.2019
before the Court, I am of the opinion that defendant No.2 can be
permitted to take cross-examination by imposing some costs. Hence,
following order:
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ORDER
Notice of Motion no. 1063 of 2020 in Suit no. 2960 of 2010 is allowed
as under-
1. Order of closing the cross-examination of PW-01 dated 22-10-2019
by defendant no.2 is hereby set aside subject to costs of Rs.3,000/-(Rs.
Three Thousand only).
2. Time granted till next to deposit the said costs in the Court or it be
directly given to the plaintiff.
3. After compliance of order of the costs matter be posted for cross-
examination of PW-01 Mahendra by defendant no.2.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 06/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 06/03/2021
Transcribed on : 12/03/2021
Checked on : 12/03/2021
Signed on : 12/03/2021 ( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.03.2021 at 04.10 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 06/03/21
Judgment/order signed by P.O. on 12/03/21
Judgment/order uploaded on 15/03/21
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