Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 1326 OF 2019
IN
L.C. SUIT NO. 665 OF 2012
(CNR NO. MHCCO10034402019)
Danbanhadur Pandohi Yadav )
Aged about 36 years, residing at )
Room No. 005, )
Transit Camp. B2, Shivshahi Prakalp )
Wadala, Mumbai 400037. )...Plaintiff.
Versus
The Municipal Corporation of Gr.Mumbai )
a body corporate functioning under )
the provisions of Mumbai Municipal )
Corporation Act, 1888 and having its )
office at Mahapalika Marg, Fort )
Mumbai400 001. )...Defendants.
Appearance:
Advocate Mr. M.H.Belosay for plaintiff.
Advocate Mr. Kumavat for Defendants/MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 5th JULY, 2019.
(C.R.No.06)
O R D E R
This notice of motion has taken out by defendants
requesting therein to set aside no cross order passed to the plaintiff's
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witness against them dated 16/11/2018. This notice of motion is
resisted on behalf of the plaintiff by filing reply dated 05/07/19 i.e.
on today. Heard both the Ld. counsels on behalf of both the sides at
length. Read the present notice of motion and reply thereon. Perused
the record.
2. The Ld. counsel on behalf of the defendants has argued
that the plaintiff sought number of adjournments for filing his evidence
affidavit. After filing of the evidence affidavit of the plaintiff, the
number of onwards dates sought the adjournments by saying one or
other reasons. On 16/11/2018, the Ld. counsel on behalf of the
defendants was late to reach the court due to traffic and before
reaching to the Court, the Hon'ble Court was pleased to pass the no
cross order against the defendants. On the same day, it tried to give
application for setting aside no cross order but on the oral order of the
court, he filed notice of motion. There was no intention on behalf of
the defendants to prolong for take cross examination of the plaintiffs
witness. Moreover, the defendants are and were ready to cross examine
the plaintiff. On these grounds, the Ld. counsel on behalf of the
defendants has requested that by allowing the present notice of motion
no cross order may kindly be set aside.
3. The Ld. counsel on behalf of the plaintiff has argued that
the plaintiff Danbanhadur Pandohi Yadav has filed his affidavit
evidence on 12/2/2015. After filing the evidence affidavit and
documents, the defendants have sought adjournments for taking cross
examination to the plaintiffs witness. Therefore, lastly, on 16/11/18,
the Hon'ble Court was pleased to pass the no cross order against the
defendants. The present notice of motion came to be filed on behalf of
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the defendants on 20/3/2019 i.e. more than four months delay after the
date of order of no cross examination. The defendants have
intentionally sought the adjournments for taking the cross examination.
The defendants are not explained the reason for filing this late notice
of motion.
4. The Ld. counsel on behalf of the plaintiff has further
argued that the defendants is the Municipal Corporation of the Greater
Mumbai. The defendants are not entitled for seeking the set aside order
of cross examination. The Ld. counsel on behalf of the plaintiff has
placed his reliance on the Judgment in the case of the State of
W.B.Vs. Howrah Municipality reported in AIR 1972 S.C 749. The
Hon'ble Supreme court has held that Limitation Act (1963), Sec.5
Sufficient cause Expression can not be construed too liberally merely
because the party in default is Government."
5. After hearing minutely argument advanced on behalf of
both the sides at length, on scrutiny of the contents of this notice of
motion and reply given on behalf of the plaintiff thereon and on
perusal of the record, it appears that the present suit came to be filed on
behalf of the plaintiff on 14/03/12. The plaintiff sought number of
adjournments for filing his evidence affidavit. Thereafter, on
12/2/2015, the plaintiff Danbanhadur Yadav has filed his evidence
affidavit. Thereafter, on behalf of both the sides, the adjournment
sought for cross examination. There is no only fault on the part of the
defendants for taking cross examination to the plaintiff for same. The
plaintiff is also equally responsible. Admittedly, no cross examination
order was passed by this Court on 16/11/2018 against the defendants.
Admittedly, on 20/3/2019, the defendants have filed this present notice
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of motion for setting aside no cross order. Considering the reasons
mentioned in the notice of motion and default on the part of both the
sides for cross examination to the plaintiffs witness, I think in order to
decide the suit on merit, it requires to give opportunity to the
defendants for cross examination to the plaintiff's witness. I have gone
through the ratio held in citation (supra). The ratio with due respect is
not applicable to the present case in my hand due to differs of facts and
circumstances in the present case in my hand. Therefore, I proceed to
pass the following order.
ORDER
1. Notice of Motion No. 1326/19 is hereby allowed.
2. No cross order passed on 16/11/18, against the defendants is
hereby set aside.
3. Notice of Motion No.1326/19 is disposed of accordingly.
Date : 05.07.2019. (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 05.07.2019
Transcribed on: 05.07.2019
Signed by HHJ : 08.07.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
08.07.2019 5.54 p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
05.07.2019
Judgment/order signed by P.O on 08.07.2019
Judgment/order uploaded on 08.07.2019
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