Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.939/2018 in L.C.Suit No.3317/2009
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.939 OF 2018
(C.N.R. NO.MHCC010031922018)
IN
L.C. SUIT NO. 3317 OF 2009
(C.N.R. NO.MHCC010035772009)
Chandrashekhar Motilal Yadav, ]
Age 32 years, Occupation : Business, ]
Indian Inhabitant residing at F/101, ]
Modi Parik Irani Wadi, Room No.3, ]
Kandivali (West), Mumbai 400 067. ]..Applicant
In the matter between :
Maheshprasad Sitaram Mahato, ]
Age: 38 years, Occupation: Self employed ]
(Rikshaw Driver) Adult, Indian Inhabitant ]
of Mumbai residing at Room No.14B, ]
Prasad Cooperative House Society, ]
(Proposed), New Link Road, ]
Dahanukarwadi, Kandivali (West), ]
Mumbai – 400 067. ]..Plaintiff
V/s.
1 Chandrashekhar Motilal Yadav, ]
Age 32 years, Occupation : Business, ]
Indian Inhabitant residing at F/101, ]
Modi Parik Irani Wadi, Room No.3, ]
Kandivali (West), Mumbai 400 067. ]
2 The Municipal Corporation of ]
Greater Mumbai, a body corporate ]
duly constituted under the provision of ]
Bomaby Municipal Corporation Act 1888, ]
Having their Headquarter at ]
Mahapalika Marg, Mumbai 400 001. ]..Defendants
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2 N/M No.939/2018 in L.C.Suit No.3317/2009
Advocate Mr. Sawant for plaintiff.
Advocate Mr. Kaushik for defendant no.1
Advocate Mr. Khandagale for BMC/defendant no.2.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.11)
DATE : 5th APRIL 2018
ORAL ORDER
This Notice of Motion has been taken out by defendant
no.1 for recalling order dated 09.01.2018 to the extent observing
further crossexamination is commenced and completed and also for
seeking permission to continue and complete the crossexamination.
2 In support of notice of motion, defendant no.1 has filed
affidavit. It is stated by defendant no.1 that matter was listed on
09.01.2018 for crossexamination of PW1. But on the same day, due to
confusion about the date of hearing, his advocate could not remain
present before the Court and it was recorded that none present for
defendant no.1. On the oral request of advocate Kamble, adjournment
granted for conducting crossexamination, who was appearing for
defendant no.2. Further, it is averred that order passed during the
recording of the evidence and in the roznama are contrary.
3 It is further averred that, it is just and also in the interest
of justice to set aside the order passed. If this notice of motions is
granted, the plaintiff would not suffer any harm, loss or prejudice. But
defendant no.1 would suffer irreparable loss, harm, and prejudice,
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3 N/M No.939/2018 in L.C.Suit No.3317/2009
which cannot be compensated in terms of money. The defendant has
good case on merits. Thus, prayed for allowing of notice of motion.
4 The advocate for the plaintiff has filed reply and it is
contended that defendant no.1 is lingering the matter without any
reason. Defendant no.1 was absent and there is no case made out as to
why he could not present before the Court. Further, it is contended that
in case, Court inclined to grant, then costs be imposed upon defendant
no.1. Hence, prayed for dismissal of notice of motion.
5 Heard the learned advocate for defendant no.1 and the
learned advocate for the plaintiff.
6 It appears that reason stated by defendant no.1 is confusion
in respect of date fixed for crossexamination by defendant no.1.
Because of the same, his advocate could not attend the matter. Further,
it is stated by defendant no.1 that he has good case on merits. Thus,
considering the reason stated and in order to decide real contraversial
issues involved in the suit, on merits, by giving opportunity to
defendant no.1 to conduct crossexamination, it is just ad proper to
allow present notice of motion in the interest of justice. But while
allowing present notice of motion, it is to be taken into consideration
that the suit is of the year 2009 and due to want of appearance of
defendant no.1 and his advocate, on fixed date, the matter is delayed to
proceed further. Therefore, it is just to impose costs upon defendant
no.1. Thus, notice of motion is to be made absolute, in the interest of
justice, by imposing costs upon the plaintiff.
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4 N/M No.939/2018 in L.C.Suit No.3317/2009
7 In the light of above discussion and findings as to points,
this notice of motion is to be made absolute in the interest of justice.
With this, I proceed to pass the following order:.
ORDER
1 Notice of Motion No. 939 of 2018 is made absolute in terms of
prayer clause (a) to (c) subject to payment of costs of Rs.1,000/
payable by defendant no.1 to the plaintiff on or before next date.
2 On payment of costs, defendant no.1 is directed to conduct
further crossexamination of PW1 Mr. Maheshprasad Mahato on next
date without fail.
3 Notice of Motion No. 939 of 2018 stands disposed of accordingly.
(S. P. PONKSHE)
Judge,
City Civil Court,
Gr. Bombay.
Date: 05/04/2018.
Dictated on : 05/04/2018
Transcribed on : 05/04/2018
Signed on : 05/04/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/04/2018 At 11.20 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
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5 N/M No.939/2018 in L.C.Suit No.3317/2009
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
05/04/2018
Judgment/Order signed by P.O. on 05/04/2018
Judgment/Order uploaded on 06/04/2018
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