Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 13872018 in Suit No. 71192006
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1387 OF 2018
IN
SUIT NO. 7119 OF 2006
(HIGH COURT SUIT NO.2879 OF 2006)
(CNR NO. MHCC010043812018)
Mr. Shamsuddin Naikawadi ….Applicant
IN THE MATTER BETWEEN
Anwar Pasha & Another …. Plaintiffs
Versus
Mr. Shamsuddin Naikawadi ….Defendant
Appearance:
Shri. Harish Pawar, Advocate for plaintiff.
Shri. Mihir Goilkar, Advocate for defendants.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 07/06/2019
ORAL ORDER
1) The notice of motion is filed by the plaintiff to set
aside the order dated 5/3/2018 whereby the suit is posted for
final arguments and defendant be permitted to file the defence
affidavit. The notice of motion is supported by affidavit of
Shamshuddin Naikawadi, one of the defendant.
2) The plaintiff filed reply and objected for setting aside
the order on the ground that ample opportunity was granted to
the defendant to file evidence. The defendant failed and
neglected to adduce evidence. The past conduct of the defendant
shows that he is trying to prolong the decision of the suit hence
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prayed to reject the notice of motion.
3) Heard Advocate Shri. Mihir Goilkar for defendant
and Advocate Shri. Harish Pawar for plaintiff. At the time of
argument of advocate for plaintiff it came to the knowledge that
both the parties are senior citizens. Therefore, it was pointed out
to both the advocates that the suit has to be transferred to court
room no.9, a special court for senior citizens as per the
notifications. However, both the advocates requested to pass the
order as I have heard the notice of motion. Hence, order is passed
in the notice of motion.
4) I have gone through the record. The suit was filed by
the plaintiff in the year 2006 for partition of suit property. The
defendant filed written statement on 11/4/2008. The issues are
framed by my Predecessor on 25/7/2014. Thereafter, the plaintiff
has adduced evidence on 25/3/2015 and has closed the evidence
on 30/11/2017. The record also shows that the attempt was
made to resolve the dispute through mediator. The chamber
summons was filed in between to delete the name of plaintiff
no.3 who died during the proceeding of the suit.
5) The suit was fixed for evidence of defendant on
18/12/2017. However, the suit is adjourned on 18/12/2017,
12/1/2018 and 14/2/2018 to 5/3/2018. On 5/3/2018 the
advocate for plaintiff and defendant was present. Plaintiff was
also present. The defendant was absent. The suit was kept back
and when the matter was called afterwards the roznama shows
that none present for defendant. No evidence is filed. Therefore,
the suit was posted for final arguments. It is this order. The
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defendant wants to set aside and seeking opportunity to adduce
evidence on the ground that he has found one document dated
24/9/2011 to be brought on record to decide the dispute
between the parties.
6) It is pointed by Advocate Shri. Pawar for plaintiff
that the defendant has admitted the claim of 50% share of the
plaintiff in para no.3 of the affidavit in support of notice of
motion. Considering the roznama and the nature of the suit
between the parties filed for partition of the properties, it will be
in the interest of justice to give a last opportunity to the
defendant to adduce evidence by setting aside the order dated
5/3/2018. The plaintiff can be compensated with cost. Hence,
pass following order:
ORDER
1. The Notice of Motion is allowed on
payment of cost of Rs. 3,500/ to the
plaintiff on or before the next date,
failing which the suit will be for final
arguments.
2. On payment of the above cost within
the above period, the order dated
5/3/2018 is set aside and defendant to
adduce evidence on the next date of
hearing.
3. Accordingly the notice of motion is
disposed off.
(S.S. Nagur)
Date : 07/06/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
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Dictated on : 07/06/2019
Transcribed on : 07/06/2019
Signed on : 07/06/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
14/06/2019 & 11.02 a.m. : Mrs. Shobha Ashok Shekade.
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 13/06/2019
Order
Judgment/Order signed by the P.O. on : 13/06/2019
Judgment/Order uploaded on : 14/06/2019
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