Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2077 OF 2019
IN
SUIT NO.2817 OF 2010
Marzban Limki ...Plaintiff
V/s.
1. Bachabal L. Mistry (deceased) deleted
2. Zarir B. Kerawalla
3. Xerxes B. Kerawalla (deceased) deleted
4. Bahram T. Unwalla (deceased) deleted
And
5. Mr. Rajiv R. Sanghavi
6. Mrs. Sonal Rajiv Sanghvi ... Defendants.
Appearance:
Advocate Mr. V.E. Pereira for the Plaintiff.
Advocate Ms. Sushma Singh for the Defendants.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 9th September, 2021.
ORDER
This notice of motion is of defendant seeking to recall the
order dated 22.4.2019, discharging the witness of plaintiff without his
crossexamination by other side. According to defendants, on the given
date 22.4.2019, the advocate for defendants due to illhealth of her
motherinlaw was unable to appear in the Court. Subsequently, her
motherinlaw died, which prevented her to appear in the Court and to
crossexamine the witness of the plaintiff.
2. The plaintiff objected the notice of motion on the premise
that since the beginning there was negligence on the part of the
defendants in crossexamining the witness of plaintiff. The plaintiff has
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given dates, on which the crossexamination of PW1 could not be done.
According to the plaintiff, sufficient opportunities were given to the
defendants to crossexamine the witness. The cause shown is not
satisfactory. The plaintiff asked to dismiss the notice of motion.
3. Heard both. Perused notice of motion, reply and the
record. 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 only sufficient cause, which
prevented the defendants from appearing
in the Court on 22.4.2019, when the
order of discharging the witness of
plaintiff without crossexamination was
passed ?
Yes.
2. What order N/M is allowed.
Reasons
As to Point No. 1 :
4. Not only by filing affidavit but also by making available the
news paper cutting regarding the death of Smt. Sahobadevi on
22.4.2019, the defendants have showed inability of their advocate to
appear on 22.4.2019 and crossexamine the plaintiff’s witness. In
absence of otherwise, the said cause is satisfactory and needs to be
accepted. Though the plaintiff has claimed that on earlier occasions
also no crossexamination of PW1 would take place, because of the
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negligence of the defendants. But when the court had condoned the
absence of the advocate on earlier occasions, now the said cause
cannot be taken to refuse to set aside the order dated 22.4.2019.
5. For the purpose of present notice of motion, it requires to
see whether on 22.4.2019 was there any sufficient cause which
prevented the defendant from appearing in the Court. As the inability
of Advocate to appear and crossexamine the plaintiff witness is
satisfactory explained, it is just to extend an opportunity to the
defendants to crossexamine the witness by recalling the order dated
22.4.2019. Hence, answering the point No.1 in the affirmative,
following order is passed:
Order
1. Notice motion No.2077 of 2019 is allowed
2. The order dated 22.4.2019 discharging the witness of the
plaintiff without any crossexamination of defendant is set
aside.
3. Defendants are permitted to crossexamine the witness of
the plaintiff.
4. Accordingly the Notice of Motion is disposed off.
(H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 09.09.2021
Transcribed on : 17.09.2021
Signed on : 20.09.2021
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Suit No.2817/2010
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 21.09.2021 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
09.09.2021
JUDGMENT /ORDER signed by P.O. on 20.09.2021
JUDGMENT /ORDER uploaded on 21.09.2021
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