Final Order 1

Order Details: Copy of Judgment
Pdf Text: IN THE COURT OF CITY CIVIL, GR. BOMBAY
REVIEW PETITION NO.63 of 2018
IN
SUIT NO. 778 of 2009
(CNR No. MHCC010032582018)
Shri Dharamshi Bhavanji Rupal and Ors.
...Plaintiffs.
Versus
Shri Mohanlal Dharamji Pawani and Ors.
...Defendants.
APPEARANCE :
Adv. Mr. P.D. Gandhy for plaintiffs.
Adv. Mr. Pai for defendants.
CORAM : H.H.J. SHRI GIRISH R. AGRAWAL,
(C.R. NO.03).
Dated : 10th July, 2018.
O R D E R
The original defendant No.3 to 6 have filed this Review
Petition seeking review of order dated 22.01.2018 passed in Notice of
Motion No.2425 of 2017 and for discarding the evidence of PW1.
Alternatively, it is prayed that the plaintiff be directed to comply with
the order dated 28.07.2017 and present himself for crossexamination
before the Commissioner.
2. Heard Ld. counsel for the parties. Perused the record.
3. It is urged by the Ld. counsel for applicants that there is error
apparent on the face of record in the order dated 22.01.2018 passed by
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Review Petition 63/18 2 Order
this Court in Notice of Motion 2425/17. He urged that this Court had
appointed Commissioner for recording of evidence by order dated
08.03.2017. Thereafter, the crossexamination of PW1 was started on
30.03.2017 and it was continued on several dates. Thereafter, the
plaintiff filed Notice of Motion 2425/17 and defendants filed their reply
to said motion. By interim order dated 28.07.2017, this Court, as a test,
directed Commissioner to continue with examination of PW1 and file
the copy of 100 questions as a test before this Court so as to decide and
adjudicate the motion on merits. He further urged that the main error
in order dated 22.01.2018 is that this Court has given chance to PW1
to continue with the crossexamination before the Court, despite his
absence before the Commissioner. He further submitted that since
Commissioner was appointed by consent of the parties, it was improper
to discharge Commissioner without giving a proper chance to
defendants for presenting their case.
4. As against this, the Ld. Counsel for plaintiff has urged that
the Review Petition is not maintainable in law. He submitted that the
prayer made in the Review Petition is beyond the scope of order dated
22.01.2018. He submitted that the defendant could not point out what
is the prejudice to them, if the evidence is recorded by this Court and
not by the Commissioner.
5. In rebuttal, the Ld. Counsel for defendants has submitted
that it is not his submission that Court cannot discharge Commissioner
once appointed but his submission was whether the Commissioner
ought to have been discharged.
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Review Petition 63/18 3 Order
6. The prayer clause (a) of the Review Petition, the prayer in
the said clause, “to discard the evidence of PW1” was not the subject
matter of the order dated 22.01.2018 passed by this Court, and,
therefore, said prayer cannot be considered in review jurisdiction.
7. The Notice of Motion 2425 of 2017 was filed by the
plaintiffs praying to set aside the order dated 08.03.2017 passed by this
Court, whereby the Commissioner was appointed for recording of
evidence. By interim order dated 28.07.2017 passed in said motion, this
Court had given certain directions to the parties and to the
Commissioner for recording of evidence and Commissioner was granted
3 weeks time to complete the said exercise. However, as noted in the
order dated 22.01.2018, time was extended to comply with the order
dated 28.07.2017, on 04.10.2017 and 06.10.2017. Despite granting
extension till 15.01.2018, the evidence was not completed.
8. The Ld. Counsel for the defendants is claiming that the
plaintiff and his counsel for the adjournments before the Commissioner
and the Ld. Counsel for plaintiff is blaming the defendants for the delay
in conclusion of evidence. In any case, this Court is concerned with
expeditious disposal of old suit and the present suit is almost 10 years
old. The parties are senior citizens and suit is already expedited by this
Court by order dated 27.01.2017.
9. During the hearing of Review Petition, when, this Court
asked the Ld. Counsel for defendants as to what was the prejudice to
the defendants to record the evidence before this Court instead of
Commissioner, he submitted that recording evidence before the
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Commissioner is more convenient as it is recorded after the Court
hours. The Ld. Counsel could not point out any prejudice to the
defendants.
10. It is not disputed by both the parties that this Court has
power to discharge Commissioner and record evidence, even, if, it is
partly recorded by the Commissioner. The interim order dated
28.07.2017 was passed by my Ld. Predecessor only with a view to “test
the allegations made by the parties against each other in Notice of
Motion 2425/17”. Once this Court allowed the said motion on
22.01.2018 and discharged the Commissioner, the said interim order
has merged with the final order.
11. The Ld. Counsel for the defendants has invited my
attention to some portions of the crossexamination conducted before
the Commissioner and it is clear from the said evidence that the parties
and their advocates are taking lot of liberty before the Commissioner in
this contested matter. As a result, the recording of evidence is not
proceeding smoothly before the Commissioner. The submission of Ld.
Counsel for defendants that they were not given proper opportunity of
hearing in Notice of Motion 2425 of 2017 by this Court is a misleading
statement and it is also contrary to the record. On 15.01.2018, this
Court heard Adv. Joshi on behalf of defendant Nos.3 and 6 and then,
the matter was closed for order. Therefore, there is no substance in the
submissions of Ld. Counsel for defendants that defendant Nos.3 and 6
were not given proper opportunity of hearing.
12. The Ld. Counsel for both sides have cited rulings in support of
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their submissions. On perusal of the rulings cited by the Ld. Counsel for
review petitioner, I find that the fact situation in those cases is totally
different and therefore, the said rulings cannot be applied in the present
case.
13. I do not find any error apparent on the face of record in the order
dated 22.01.2018 passed in Notice of Motion 2425 of 2017. The Ld.
Counsel for petitioner could not point out a single cogent reason why
this court should not record evidence in the suit. It is in the interest of
both the parties that the evidence is further continued before the Court
and not before the Commissioner. Hence, the following order.
ORDER
The Review Petition No.63 of 2018 is dismissed.
(G. R. AGRAWAL)
Judge, (C.R.No.03)
Date : 10.07.2018. City Civil Court, Gr. Bombay.
Dictated on : 10.07.2018.
Transcribed on : 13.07.2018.
Signed on : 13.07.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
At 5.50 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
(Stenographer)
Name of the Judge H.H.J. Shri G.R. Agrawal
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(With Court no.) Court No.3
Date of Pronouncement of Judgment 10.07.2018.
Judgment signed by P.O. on 10.07.2018.
Judgment uploaded on 13.07.2018.
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