Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.125018 in SU 494508
CNR No. MHCC010060072008
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1250 OF 2018
IN
SUIT NO.4945 OF 2008
(HIGH COURT SUIT NO.3340 OF 2008)
Priyesh Bheda ...Plaintiff
V/s.
Vijaya Nadar ...Defendant
Appearances:
Plaintiff in person.
Ld. Adv Kranti Anand for defendant.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 07th SEPTEMBER, 2018.
ORDER
1. This is notice of motion taken by defendant for setting aside
orders dated 01.09.2017 and 27.02.2018 closing the evidence and give
an opportunity to the defendant to cross examine witness.
2. Constituent Attorney of defendant in support of notice of motion
filed affidavit. His contention is that though the defendant being
represented by an Advocate on record was unable to remain present
due to genuine personal difficulty as it is a matter of fact that Advocate
in May, 2016 had undergone a surgery and was on bed rest due to
stitches and surgery for almost more than two months whereas during
-- 1 of 5 --
2 NM No.125018 in SU 494508
that period itself the mother of the Advocate was diagnosed bone caner
and thereafter, her health was deteriorating, as the cancer was at final
stage, thus, the Advocate on record was recovering from her surgery
had to also concentrate on her mother's condition. It further contended
that due to situation was worst that in the month of 16th January, 2017
the Advocate on record lost her mother and therefore, she was in
depression. During that period itself, the Advocate on record shifted her
office and during that shifting many matters briefs were not in place.
Advocate on record also lost her senior in the month of September,
2017 and that was followed by the death of her uncle in the month of
December, 2017, thus, the situation was quite difficult and the same
being genuine. It further contended that it is a matter of record that
after 01.09.2017 the plaintiff produced some new documents and
therefore, even on this ground it is most respectfully prayed that an
opportunity may be granted to the defendant to allow cross
examination so, as the defendant gets an opportunity to put her case, as
it is a matter of record that the defendant resides in USA and even she
had facing family problems, so due to this reason and the circumstantial
conditions of the defendant and also of the Advocate on record, neither
the defendant was in a position to give instructions to her Advocate and
so, also due to mental pressure caused due to death after death the
above matter though on certain dates attended by the Junior colleague
of the Advocate on record the matter was not in the position to proceed
with the cross examination. Hence, the situations and the
circumstances which were beyond the control of the defendant the cross
examination remained to be conducted, therefore, the defendant prayed
for setting aside the order of no cross. Defendant's contention is that if
she is not allowed to cross examine, it will cause irreparable harm to
her, so, in the interest of justice prayed for setting aside no cross order.
-- 2 of 5 --
3 NM No.125018 in SU 494508
3. The plaintiff by filing reply denied the contention of defendant.
Plaintiff's contention is that the defendant seeks setting order dated
01.09.2017 after more than six months, when it has attained finality.
They seek to cross examine PW1, but subsequently PW2 and PW3
have also deposed and now the clock cannot be turned back. It further
contended that affidavit in support makes false depositions vide para
no.4, stating that the Ld. Advocate was on bed rest in May, 2016, but
she had attended other Courts in that month, such as Hon'ble High
Court at Bombay, 13th Court at Bhoiwada and 35th Court at CST,
Mumbai. It further contended that vide para nos.4 to 7 of the affidavit,
it is stated that Ld. Advocate had various problems from May, 2016 till
December, 2017, but it is part of Court records that the Advocate did
not attend Court even after December, 2017. Advocate was able to
appear in other Courts during that period including before the Hon'ble
High Court on dates 08.06.2016, 14.10.2016 and 12.07.2017 as per
enclosed orders. It further contended that notice of motion has taken
deliberately with intent to further delay the matter and it be dismissed
with costs.
4. I have heard Advocate for defendant and plaintiff in person.
5. Advocate for defendant submitted that she herself was operated
and thereafter, her mother detected bone cancer and thereafter, she
expired. Her uncle was expired. Her Senior was expired so, she was in
depression so, she was not able to attend the Court. She submitted that
in the interest of justice, defendant be allowed to cross examine plaintiff
and if allowed to cross examine, no harm will be caused to plaintiff. On
the contrary, if no cross order set aside, it will harm to defendant, she
could not put her defence therefore, she prayed for setting aside order.
-- 3 of 5 --
4 NM No.125018 in SU 494508
6. Plaintiff in person submitted that Advocate for defendant Mrs.
Kranti Anand was present before the Hon'ble High Court on
08.06.2016, 14.10.2016 and 12.07.2017. He submitted that Advocate
was appearing in the Hon'ble High Court, then her contention is that
she was not able to attend the Court due to several situations is not
acceptable therefore, prayed for dismissal of notice of motion.
7. I have gone through the roznama it appears that for some dates
nobody present for defendant. Plaintiff filed affidavit of evidence at
Exh.4 on 06.08.2016. On that day, none present for defendant. On
adjourned date also none present for defendant. Thereafter, plaintiff
has taken application for witness summons to Bank of India through
production of documents on record. Matter was adjourned for cross
examination and then, on 01.09.2017 no cross examination of PW1
was passed. Then, again the plaintiff filed an application to issue
witness summons and witness filed affidavit of evidence on 20.01.2018.
Plaintiff filed affidavit of witness Ashok Karamchandani and Diptiben
Yogeshbahi Shah. No cross order of witness Ashok Karamachandni was
passed on 27.02.2018, it shows defendant was careless in appearing
and handing the matter therefore, even though reasons given by
Advocate for defendant is accepted, some costs is to be saddled on
defendant so, plaintiff will be compensated for delaying the matter.
With this, in the interest of justice, orders dated 01.09.2017 and
27.02.2018 is set aside on costs of Rs.5,000/ to plaintiff. Accordingly, I
proceed to pass the following order :
O R D E R
1. Notice of Motion No.1250 of 2018 is allowed.
2. Orders dated 01.09.2017 and 27.02.2018 is set aside. The
defendant is allowed to cross examine plaintiff and his witnesses
-- 4 of 5 --
5 NM No.125018 in SU 494508
without any delay.
3. Defendant is directed to pay cost of Rs.5,000/ to plaintiff.
4. Notice of Motion No.1250 of 2018 stands disposed off
accordingly.
( KALPANA S. HORE )
Judge,
Dated : 07/09/2018 City Civil Court, Gr. MUMBAI
Dictated on : 07/09/2018
Transcribed on : 07/09/2018
Signed on : 07/09/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
10.09.2018 10.49 a.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
07.09.2018
JUDGEMENT /ORDER signed by
P.O. on
07.09.2018
JUDGEMENT /ORDER uploaded
on
10.09.2018
-- 5 of 5 --