Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2113 OF 2019
IN
S.C. SUIT NO.4589 OF 2010
Bharat Petroleum Corporation Ltd. … Plaintiffs
V/s.
The Board of Trustees of the Port of
Mumbai & Anr. … Defendants
Appearances :
Ld. Adv. Darshit Jain for plaintiff.
Ld. Adv. Ravi Irle for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 29th AUGUST, 2019
ORDER
Plaintiff has taken out this notice of motion for recalling
order of closing of evidence of Plaintiffs Witness No.4 dated
03.10.2018.
2. It is argued on behalf of plaintiff that plaintiff has filed
evidence affidavit of PW4 Mrs. Shraddha Gaitonde. On 03.10.2018 she
was absent for her crossexamination. Therefore, Court has rejected the
prayer for adjournment and thereby closed plaintiffs evidence. The
absence was not intentional. She has sustained fracture injury and
advised bed rest. Therefore, she could not remain present before Court.
As such said order may be set aside and plaintiff be allowed to proceed
MHCC01005852201 9
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NM 2113/2019 .. 2 .. Suit No.4589/2010
with the evidence of PW4.
3. The Ld. Counsel appearing on behalf of defendant has
resisted this application on the ground that plaintiff was well aware
about closing of their evidence on 03.10.2018. Even then this notice of
motion is taken out after delay of 166 days. No reason of said delay is
given. So also no sufficient reasons are given for absence of PW4 on the
day of crossexamination. Moreover, this application is beyond period
of limitation as 30 days limitation is provided for taking out such
application.
4. It is a matter of record that since 03.07.2018 the matter
was posted for crossexamination of PW4. On two dates she was absent
while on one date defendant sought adjournment for crossexamination.
Again on 03.10.2018 she was absent and the impugned order is passed.
Here, as per plaintiff because of fracture and bed rest she could not
remain present before Court. In support of said submission the copy of
one clinic is placed on record showing that PW4 has suffered fracture.
Therefore the reason of absence as shown by plaintiff looks to be proper
and genuine.
5. It is further objection of defendant that plaintiff was well
aware about impugned order dated 03.10.2018. Even then the
application is not taken out immediately i.e. within period of 30 days.
The Learned Counsel for plaintiff relied on article 124 of Limitation Act.
It is regarding review of judgment by the Court. Here, the impugned
order of closing plaintiffs evidence is not a judgment and therefore said
article will not apply here.
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NM 2113/2019 .. 3 .. Suit No.4589/2010
6. As such the reason of absence looks to be genuine one. As
the witness was suffering fracture she could not remain present in the
Court. Therefore opportunity needs to be given to plaintiff to lead
evidence. Moreover, as far as possible matter must be decided on merit
by giving full and fair opportunity to the parties to put their case. In
case of delay certain cost can be imposed. Accordingly, the order.
ORDER
1. NM No.2113/19 in SU No.4589/10 is hereby allowed.
2. The impugned order dated 03.10.2018 closing plaintiffs
evidence is hereby recalled on plaintiff paying cost of
Rs.3,000,/ either to pay to defendant directly or to deposit
it in the Court on or before next date.
3. After compliance of cost order matter be kept for evidence
of PW4.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 29/08/2019 City Civil Court, Gr. Mumbai
Dictated on : 29.08.2019
Transcribed on : 30.08.2019
Signed on : 30.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
30.08.2019 03.10 p.m. Sanjay Baliram Kaskar
(Stenographer Higher Grade)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
29.08.2019.
Judgement/order signed by P.O on 30.08.2019.
Judgement/order uploaded on 30.08.2019.
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