Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1290 OF 2019
IN
S.C.SUIT NO.75 OF 1987
(HIGH COURT SUIT NO.2733 OF 1987)
Dilshad Panday … Applicant
IN THE MATTER OF
Dilshad Panday ... Plaintiff
Versus
Miss.Sharad Patel and Ors ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 25th JUNE, 2019
Advocate Ms.Chheda for plaintiff.
Advocate Mr.Nilesh Nair for defendant no.5.
O R D E R
1. This notice of motion is taken out by plaintiff to grant relief
to plaintiff to file further affidavit in lieu of her examinationinchief
along with additional compilation of documents. Plaintiff has also
prayed to condone the delay, if any, caused in filing this notice of
motion.
2. Plaintiff has filed her affidavit in support of notice of
motion contending that she had already filed her affidavit of
examinationinchief on 18/11/2016. However, she is constrained to
seek leave from the Court to file her additional affidavit of evidence
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with further compilation of documents because recently she has come to
the position to place those documents and facts before the Court. As
mentioned in affidavit that on 15/02/2018 plaintiff was diagnosed with
Oligomestatic Ca. Breast Caner and she had under gone a surgery on
05/03/2018. Thereafter, she had gone through several tests of
Chemotherapy. On or around 21/05/2018 a port was inserted in the
right side her chest by way of surgery. She had undergone
chemotherapy followed by radiation sessions on or around 27/09/2018.
Again on 25/02/2019 she had went through some tests of radiation.
She was advised for adequate rest after radiation and vide certificate
dated 25/02/2019 she has completed her treatment and had recovered
from cancer. Now doctors have certified that she is recovered from
Cancer.
2. It is contended that after her recovery from ailment, she
has attempted to search record of the suit for refreshing her memory.
During such a search she came across several documents which are
crucial and important for adjudication of present suit. Hence, she is
intending to file additional affidavit of her examinationinchief with
compilation of documents. According to plaintiff, those documents
could not be brought on record due to fact that plaintiff was suffering
from Cancer. According to plaintiff, her additional affidavit of evidence
and the documents sought to be produced are germane to the
controversy from the matter. Hence, plaintiff has prayed to make
absolute the notice of motion.
3. It is pertinent to note here that defendant no.5 has not filed
his affidavit of reply to resist notice of motion but advocate for
defendant no.5 submitted that the reply filed on list of documents
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annexed to the notice of motion should be considered as reply to this
notice of motion as such defendant no.5 has resisted the notice of
motion contending that the documents upon which plaintiff is intending
to rely are denied by defendant no.5.
4. Heard plaintiff's advocate on 22nd April 2019 who has
submitted that on 21st February, 2019 letter of administration with Will
which is filed at page17 of notice of motion is granted by Hon'ble High
Court in favour of plaintiff. It is pointed out that plaintiff was suffering
from Cancer and medical certificate to that effect is filed on record. In
respect of the letter issued by Cooperative Court, Mumbai it is argued
that said letter is issued under RTI Act in respect of case
No.ABN/838/2294 of 1978 and cooperative Court has informed that
such a case was not found to be registered with said Court. In respect
of documents at page nos.29 to 39 of list of documents annexed to
notice of motion, it is argued that those documents are traced out after
plaintiff has recovered from Cancer. Lastly, it is argued that plaintiff is
intending to bring on record those documents, therefore, notice of
motion is necessary to be made absolute. On 22nd April, 2019 this Court
has observed that if defendant will not argue notice of motion Court
will decide notice of motion on merit. However, on 30th April, 2019 this
Court was busy in arguments of some other matters, hence this Court
could not pass order about this notice of motion. Any how, today
advocate for defendant no.5 appeared and submitted that documents
upon which the plaintiff is intending to rely are denied by defendants
and this fact should be considered as argument for decision of the
notice of motion.
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5. I have already observed that defendant no.5 has not filed
affidavit of reply to resist the notice of motion. However, defendant
no.5 is merely intending to deny the document as submitted by
advocate for defendant no.5. In such circumstances, it becomes clear
that defendant no.5 has not specifically denied the contentions about
the ailment of plaintiff and about tracing out of the documents after
plaintiff's recovery from the ailment. As plaintiff has suffered from
serious ailment, I find that it was but natural that prior to her treatment
about ailment like Cancer she could have traced out the documents
upon which she is intending to rely. Any how, the documents upon
which plaintiff is intending to rely, according to plaintiff, go to the roots
of the matter and even if leave will be granted to file additional affidavit
of evidence by plaintiff along with list of documents, defendant no.5
definitely will get the chance to crossexamine the plaintiff about
contentions raised in additional affidavit of evidence hence no prejudice
will be caused to defendant no.5 or any of the defendant if the notice of
motion will be allowed. Hence, considering the serious ground of
ailment of plaintiff for giving fair opportunity to plaintiff to prove her
case on merits, I find that this notice of motion is necessary to be made
absolute. Hence, I proceed to pass the following order.
O R D E R
Notice of Motion No.1290 of 2019 is made absolute in terms of
prayer Clauses (a) and (b) of Notice of Motion.
Sd/
(K.P.NANDEDKAR)
25/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 25/06/2019
Transcribed on : 27/06/2019
Signed by HHJ on : 03/07/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
03/07/2019 2.50PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgement/Order. 25/06/2019
Judgement/order signed by P.O on 03/07/2019
Judgement/order uploaded on 03/07/2019
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