Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.127619
CNR No. MHCC010032982019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1276 OF 2019
IN
SUIT NO.79 OF 1991
(HIGH COURT SUIT NO.1689 OF 1991)
Indian Petrochemicals Corporation Ltd., & Ors. ...Plaintiffs.
V/s.
Babji Shivram Clearing and Carriers Pvt. Ltd., ...Defendant.
Appearances:
Ld. Adv Tulsi for the plaintiff.
Ld. Adv Samyak Pati for the defendant.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 04th APRIL, 2019.
ORDER
1. This is notice of motion taken by defendant for allowing to grant
an opportunity to advance oral arguments on behalf of the defendant
and opportunity to file detailed written arguments on behalf of
defendant.
2. Defendant's contention is that in summons for judgment
unconditional leave to defend was granted to the defendant and
summary suit was converted to ordinary suit. Prior to transfer of the
suit, the proceedings had commenced and progressed significantly by
the year 2000 including the conclusion of cross examination and closure
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of evidence for plaintiffs and defendant. In the process of transfer,
some of the original evidences and documents were missing in the
records of Hon'ble High Court. In order to rectify the records, several
pages of oral evidence alongwith documents filed had to be
reconstructed from the plaintiffs record before the Prothonotary and
Senior Master of Bombay High Court. The defendant has at all
instances assisted the plaintiffs and has not raised objection in the
process of such reconstruction. By an order dated 01.03.2018, the
Prothonotary and Senior Master of the Hon'ble High Court directed the
reconstruction of evidence of Suit No.1689 of 1991 on the basis of the
papers in the proceedings produced by the plaintiffs and documents
were reconstructed. It further contended that inspite of the
reconstruction of the oral evidence, the original Exh.1 tendered as
evidence by the PW1 dated 17.08.2000 was not discovered in the
records of the Court. Search was taken by the plaintiffs Advocate in the
Hon'ble High Court but the same was not forthcoming. In view of this,
vide an order dated 14.02.19, the suit was fixed for arguments and the
parties were directed to file written arguments.
3. It further contended that on 07.03.2019, the current Advocates
for the defendant had requested further time for filing of detailed
written arguments as colossal amount of documents were to be studied
by them. However, no extension was granted and the defendant's
Advocate had to file a brief synopsis of the arguments on behalf of the
defendant to aid the defendant's oral submissions at the time of final
hearing of the suit. The said brief synopsis of arguments also craved
leave to file detailed written arguments. However, during the course of
the hearing dated 07.03.2019 the Hon'ble Court declared that the
opportunity to address oral arguments would not be afforded to either
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of the parties and has deemed it sufficient to merely place written
arguments on the strength of which this Court shall pass its final order
and judgment. Defendant's further contention is that as per Order XVIII
Rule 2 of the Code of Civil Procedure, afford a party to a suit a right to
state his case and produce evidence in support of its case. It further
contended that present involves substantial issues of law pertaining to,
interalia, applicability of the provisions of the Carriers Act, 1865 to the
defendant, applicability of the principle of Contra Proferentem and
other several issues in which burden is on the plaintiff to prove its case.
Issues touch upon critical facts and law which cannot be decided solely
on the basis of brief synopsis of arguments filed by the defendant. It
further contended that the right to be heard is enshrined in the
principle of audi alterem partem as well as principles of natural justice
so, opportunity be given to the defendant to make oral submissions and
to file detailed notes of arguments.
4. Plaintiff by filing say objected this notice of motion and
contended that notice of motion is bad in law and ought to have been
dismissed. It further contended that it is well settled law that once
when a hearing starts, the Code of Civil Procedure contemplates only
two stages in the trial of the suit (I) Where the hearing is adjourned or
(ii) Where the hearing is completed. When the hearing is completed
the parties have no further rights or privileges in the matter and it is
only for the convenience of the court that under Rule 1 of Order 20 of
the Code of Civil Procedure, permits the judgment to be delivered after
the interval after hearing is completed so, there is no necessity to set
aside the order.
5. It further contended that defendant is making false and frivolous
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argument that matter has not been heard by this Court in terms of Rule
2 of Order XVIII of the Code of Civil Procedure. It further contended
that the provisions of Sub Rule 3A to Rule 3D of Rule 2 of Order XVII
were brought into effect by Amending Act, 2002 which provide for right
to make oral arguments.
6. Plaintiff's further contention is that Hon'ble Supreme Court in
case of Shah Rasiklal Manilal V/s. Harnek Singh, reported in (2012) 2
SCC 196 has held that the expression “state his case”, “produce his
evidence” and “address the court generally on the whole case” occurring
in Order XVIII Rule 2 sub rule (1) and sub rule (2) have different
meaning and connotation. It further contended that Hon'ble Andhra
Pradesh High Court in case of Sultan Saleh Bin Omer V/s. Vijayachand
Sirimal reported AIR 1966 page 295, took into consideration the
provision of Order 9, 10, 11, 12, 14, Order 15 Rules 1 & 3, Order 18
Rules 1, 2 & 17 and Order 20 Rule 1, and held thus, “(17) A combined
reading of all these provisions makes it abundantly clear that the Code
has not provided for hearing of arguments as a distinct stage in the trial
of the suit. It further contended that Hon'ble Delhi High Court in case
of Mr. Amit Sharma and Ors., V/s. Mr. Sashibala & Ors., reported in
2014 SCC online Delhi 1767, held that even if it is assumed that the
oral arguments, are not urged before Authority, the case could be said
to be heard on merits if the judgment notes the arguments of the party.
It further held that Hon'ble Delhi High Court held that the party also
has enough opportunity to reargue their case on merits before the
Court which exercises revisional jurisdiction. It further contended that
notice of motion is taken only to delay the matter. It further contended
that section 151 of the Code of Civil Procedure is not applicable. With
this, prayed for dismissal of notice of motion.
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7. I have heard Advocate for both the parties.
8. Advocate for defendant submitted that opportunity ought to have
been given to defendant to argue the case and as per Order 18 Rule
3(a) of the Code of Civil Procedure, any party, may address oral
arguments in a case, and shall, before he concludes the oral arguments,
if any, submit if the Court so permits concisely and under distinct
headings written arguments in support of his case to the Court and such
written arguments shall form part of the record. Advocate for defendant
submitted that case is of 1991 and several legal issues are involved so, it
is necessary to make oral submissions therefore, opportunity should be
given to the defendant to argue the case orally.
9. Advocate for plaintiff submitted that as per the roznama dated
14.02.2019 Court directed the parties to file written arguments and
adjourned the matter for written arguments on 04.03.2019. Advocate
for plaintiff submitted that on 07.03.2019 Advocate for defendant filed
written notes of arguments and plaintiff also filed written notes of
arguments, so, the matter was adjourned for judgment on 28.03.2019.
Advocate for plaintiff submitted that once the written notes of
arguments are filed then, the defendant cannot say opportunity was not
given to the defendant to argue the case.
10. I have gone through the roznama. Suit is of 1991. It was
transferred to the City Civil Court in the year 2012. From 28.08.2014
matter is fixed for argument. On 22.04.2015 Ld. Advocate for plaintiff
submitted that evidence was recorded in the Hon'ble High Court and
after perusing R & P, notes of evidence not found in the R & P upto
11.10.2017. Then on 03.11.2017, Advocate for plaintiff submitted that
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plaintiff has applied for reconstruction of evidence and sought time.
Thereafter, on 27.04.2018 received documents from Hon'ble High
Court. After reconstruction of the record, matter kept for evidence of
plaintiff on 02.05.2018. On 14.02.2019 Advocate for plaintiff
submitted that evidence of both the parties already over when matter
was in the Hon'ble High Court and matter is fixed for arguments and
hence, matter is fixed for arguments and directed the parties to file
written arguments and adjourned to 04.03.2019. On 04.03.2019 on
request of Advocate for defendant to file written notes of arguments,
matter is adjourned to 07.03.2019. On 07.03.2019 Advocate for
defendant filed written notes of arguments and Advocate for plaintiff
also filed written notes of arguments and matter is posted for judgment
on 28.03.2019. Meanwhile, the defendant has taken this notice of
motion.
11. Order 18 Rule 3(a) of the Code of Civil Procedure, any party, may
address oral arguments in a case, and shall, before he concludes the
oral arguments, if any, submit if the Court so permits concisely and
under distinct headings written arguments in support of his case to the
Court and such written arguments shall form part of the record. 3(b) A
copy of such written arguments shall be simultaneously furnished to the
opposite party. 3(c) No adjournment shall be granted for the purpose of
filing the written arguments unless the Court, for reasons to be recorded
in writing, considers it necessary to grant such adjournment. 3(d) The
Court shall fix such time limits for the oral arguments by either of the
parties in a case, as it thinks fit. This case is old suit and already matter
was fixed for arguments, to curtail the time, parties are directed to file
written notes of arguments. Advocate for defendant wants to make oral
arguments as several law points and factual points are involved so, in
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the interest of justice, Advocate for defendant is allowed to make oral
arguments. However, as per Rule 3(d), the Court shall fix such time
limits for the oral arguments by either of the parties in a case, as it
thinks fit. So considering the matter is of 1991 one hour time is fixed
for oral arguments of Advocate for defendant. With this, notice of
motion is allowed and accordingly, I proceed to pass the following
order :
O R D E R
1. Notice of Motion No.1276 of 2019 is allowed.
2. Advocate for defendant is allowed to make oral submissions only
for one hour and allowed to file detailed written synopsis.
3. Notice of Motion No.1276 of 2019 stands disposed off
accordingly.
( KALPANA S. HORE )
Judge,
Dated : 04/04/2019 City Civil Court, Gr. Mumbai
Dictated on : 04/04/2019
Transcribed on : 04/04/2019
Signed on : 04/04/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
05.04.2019 4.49 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
04.04.2019
JUDGEMENT /ORDER signed by
P.O. on
04.04.2019
JUDGEMENT /ORDER uploaded
on
05.04.2019
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