Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1980 OF 2019
IN
SHORT CAUSE SUIT NO. 73 OF 2010
1. Shivnarayan Baxiram Nemani
Trust & Ors. ...Plaintiffs.
Versus
Mohan Boyat ...Defendant.
Appearance:
Advocates Mr. Vikas Mahanagare and Bhavika Shinde for the Plaintiffs.
Advocates Mr. Utsav Dalal & Mr. Durgesh Kulkarni for the Defendant.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 16th September, 2021
ORDER
This notice of motion has been taken out by the defendant
seeking to set aside order dated 12.3.2019 of closing the evidence of
defendant and leave to file affidavit in lieu of examinationinchief of
defendant.
2. In suit No.73/2010, the defendant had appeared and
contested the suit by filing written statement. On 12.03.2019, when the
suit was called on for hearing, the Advocate on record came late in the
Court. He learned that the evidence of defendant has been closed by
the Court. According to defendant, one suit bearing RAD
No.1862/2015 is pending between the parties in Small Causes Court,
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Mumbai. The parties in the relevant period March, 2019, were
negotiating with each other. But the Advocate of the plaintiff did not
inform that fact to the Court, when the order of closing the evidence of
defendant was passed. The defendant asked to set aside the order
dated 12.3.2019 and permit to lead the evidence in the suit.
3. The Notice of Motion has been objected by the plaintiffs,
vide reply dated 24.10.2019 on the premise that the cause shown in the
notice of motion for recalling the order dated 12.3.2019 is false. The
defendant had been given sufficient opportunities to lead the evidence.
But he failed. If the order dated 12.3.2019 is recalled, the plaintiffs
shall suffer. The plaintiffs asked to dismiss the Notice of Motion.
4. Heard Ld. Advocate for the defendant. Perused the N/M,
reply and the record of Suit No.73/2010. On its basis, following points
rise for the determination and the findings to each of them for the
reasons recorded as below.
Sr.No. POINTS FINDINGS
1. Was there any sufficient cause which
prevented the defendant from appearing
in the suit when the suit was called on
for hearing ?
No.
2. What order ? N/M is disallowed.
Reasons:
As to Point No. 1 :
5. From the record of the suit, it is appearing that the plaintiff
had filed the affidavit in lieu of examinationinchief in Court on
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26.7.2016. On 7.1.2017, the crossexamination of PW2 was
commenced and concluded. On 17.01.2017, the plaintiff closed their
evidence. Since 20.01.2017, the suit was awaiting the evidence of
defendant. In between, the defendant moved two Misc. Applications
Exhs.31 and 32, seeking recall of plaintiff's witnesses. The Application
Exh. 31 was rejected on 04.03.2017. The application Exh.32 was
rejected on 13.12.2019. While rejecting the application Exh.32, the
defendant was directed to lead evidence on next date i.e. 12.3.2019
without fail. On 12.3.2019, neither the defendant, nor his Advocate
turned up in the Court. Thus, it appears that, from 20.1.2017 to
12.3.2019 a sufficient time was given to the defendant to lead the
evidence. But he ignored. Even assumed that by adjourning the suit,
the act of not leading the evidence by the defendant was condoned, the
question on 12.3.2019, indeed was there any sufficient cause which
prevented him from appearing in the Court ? A perusal of the N/M and
supporting affidavit, no cause has been assigned for non appearance of
the defendant in the Court on 12.3.2019 when the suit was kept for
hearing i.e. evidence of defendant. There is no explanation or
justification for the absence of defendant's witness . The Advocate of
defendant claimed that he had appeared in the suit at late stage. The
fact he could have moved an application seeking certain relief. But no
such application was moved on 12.3.2019.
6. From the record, it is appearing that the efforts of
mediation between the parties in pending suit in Small Causes Court
were failed. There is no cogent evidence showing that as on 12.3.2019,
the settlement talks were going on between the parties. Had it been the
true fact, it was for the defendant to communicate it to the Court by
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remaining present in the Court on 12.3.2019. There is no justifiable
explanation of the Advocate of the defendant, which prevented him
from appearing in the Court, when the order of closing evidence of
defendant was passed on 12.3.2019.
7. Thus, neither there is an explanation of the defendant nor
his Advocate which prevented them from appearing in the Court when
the suit was called on for hearing i.e. evidence of defendant. The cause
given in the N/M for setting aside the order dated 12.3.2019 is not
appearing to be substantial and satisfactory. The defendant who was
given an opportunity to lead the evidence between 20.1.2017 till
12.03.2019, ignored the same. Hence, answering point No.1 in the
negative, following order is passed.
ORDER
Notice of Motion No. 1980 of 2019 is disallowed with costs and
accordingly disposed off.
Dated : 16.09.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 16.09.2021
Transcribed on : 20.09.2021
Signed on : 29.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 29.09.2019 5.45 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
16.09.2021
JUDGMENT /ORDER signed by P.O. on 29.09.2021
JUDGMENT /ORDER uploaded on 29.09.2021
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