Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 1842/2019 in Suit No.8535/1999
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1842 OF 2019
IN
SUIT NO. 8535 OF 1999
(CNR NO. MHCC010051882019)
Smt. T. V. Devi …. Plaintiff
Versus
Leela Krishnan Nair and Ors ….Defendants
Appearance:
Adv. Ms. Duhita Desai for plaintiff.
Adv. Mr. S. R. Tejpal for defendant No. 1(a), 1(b) and 1(c).
Adv. Mr. Madhusudan Nair for defendant No. 2
CORUM : SMT. S.S. NAGUR,
JUDGE,
(C.R.NO.20)
DATE : 04/03/2021
ORAL ORDER
1) The notice of Motion is filed by plaintiff to appoint
commissioner to conduct cross examination of the plaintiff with
necessary directions. The Notice of Motion is supported by
Affidavit of Mr. Arun Gopalan Nair. He on oath stated that the
suit is filed for specific performance of contract and declaration.
The witness of the plaintiff has filed evidence affidavit. She has
not been cross examined by the defendants. The witness is 80
years old and is suffering from Osteoarthritis of both knees. She
is not in a position to appear before the court for cross
examination. Hence prayed to allow the notice of motion.
2) The defendants filed reply and objected on the
ground that the admission and denial of documents is not yet
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completed therefore the notice of motion is premature. The stage
of cross examination is not yet reached. Hence prayed to reject
the notice of motion.
3) Heard advocate for Ms. Duhita Desai for plaintiff, Adv. Mr. S.
R. Tejpal for defendant No. 1 (a), 1 (b) and 1 (c) and Adv. Mr.
Madhusudan Nair for defendant No. 2
4) Adv. Madhusudhan Nair for defendant No. 2 has
drawn my attention to roznama dt. 21.09.2015 that the affidavit
of the plaintiff on the point of documents is noted that cannot be
treated as evidence affidavit. It is further noted that the said
affidavit of documents is already discarded and not treated as
evidence as required under Order XVIII Rule 4 of Code of Civil
Procedure. Unless the documents are exhibited the witness
cannot be cross examined. Adv. S. R. Tejpal for defendant NO. 1
(a), 1(b) and 1(c) also argued that as documents are not
exhibited the Notice of motion is prematured. On the other hand
Adv. Ms. Desai for plaintiff has drawn my attention to medical
certificate to show that she is very old and due to present COVID
pandemic situation she will not be able to remain present before
the court.
5) The medical certificate at Exh.A to the Notice of
Motion dt. 19.04.2019 shows that the witness is 80 years who is
under treatment for Osteoarthritis of both knees. Thereby the
witness is unable to come before the Court to adduce further
evidence. The objections of the Adv. for defendants in respect of
exhibiting the documents could be complied before referring the
matter to the Commissioner to record the cross examination.
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Considering the age of witness and present COVID pandemic
situation it will be in the interest of justice to appoint
Commissioner to record cross examination of witness. Hence pass
following order :
ORDER
1. The Notice of Motion is allowed.
2. The Commissioner to record the cross
examination of the witness at the
earliest and submit the report.
3. Plaintiff to deposit the fee of
Commissioner.
4. Registrar (Civil) to comply and
appoint Commissioner to record cross
examination from the panel.
(S.S. Nagur)
Date : 04/03/2021 Judge
City Civil Court,
Greater Mumbai.
Dictated on : 04/03/2021
Transcribed on : 04/03/2021
Signed on : 04/03/2021
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF TYPIST
04/03/2021 & 5.45 pm : Mr. Mohit M. Patange
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 20)
Date of pronouncement of Judgment/ : 04/03/2021
Order
Judgment/Order signed by the P.O. on : 04/03/2021
Judgment/Order uploaded on : 04/03/2021
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