Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2517/2019 .. 1.. S.C. Suit No.8665/1994
MHCC01-006907-2019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 2517 OF 2019
(CNR NO. : MHCC01-006907-2019)
IN
L.C. SUIT NO. 8665 OF 1994
(HIGH COURT SUIT NO. 2766 OF 1994)
1. Shree Ravindra Naik )
9-B, Visanji Park, Naigaon Cross )
Road, Dadar, Mumbai – 400 014 )
2. Kalyani Pradeep Chinchondkar )
Kalyan (West) 421 301 )... Applicants
IN THE MATTER BETWEEN
1a. Veena Shrikant Naik )
w/o Late Shrikant D. Naik )
Age : 75 years, r/at 508/D, Mathura )
Bhuvan, Dadasaheb Phalke Road, )
Dadar, Mumbai – 400 014 )
1b/ Anagha Anil Patankar )
Occ : Housewife, Age : 58 )
daughter of Late Shri. Shrikant D. )
Naik, Amrut Kumbh Co-op Hsg. )
Society, K.W. Chitale Peth, Dadar, )
Mumbai – 400 028 )
1c. Aashish Shrikant Naik )
Age : 45 years, Son of Late. Shri. )
Shrikant D. Naik r/at 508/D, Mathura)
Bhuvan, Dadasaheb Phalke )
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Road, Dadar, Mumbai – 400 014 )....Plaintiffs
Versus
1. Geeta Ravindra Naik (Deceasd) )
1b. Shree Ravindra Naik )
9-B, Visanji Park, Naigaon Cross Road)
Dadar, Mumbai – 400 014 )
1c. Kalyani Pradeep Chichondkar )
Kalyan (West) 421 301 )
2. Shoba Vidyadhar Naik (Deceased) )
3. Manda Purshottam Naik )
Sion, Mumbai – 400 022 )
4. Nishikant Joshi )
Palghar District Thane )
5. Nitin Gangan )
Andheri, Mumbai – 400 093 )
6. Prachi Godbole )
Mahim, Mumbai – 400 016 )
7. Prajakta Gangan )
Dadar, Mumbai – 400 028 )
8. Municipal Corporation of Greater )
Mumbai Having its office at )
Mahapalika Building, Fort, )
Mumbai – 400 001 )….Defendants
Appearance:
Ld. Adv. Mr. Prasad Sarvankar for applicants/Defendants No.1(b) and
1(c).
Ld. Adv. Mr. S.S. Redekar for the Plaintiff.
Ld. Adv. Mrs. Vidya Vyavahare for the defendant No.8/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 26th FEBRUARY, 2021.
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ORAL ORDER
Read Notice of Motion of defendant No.1 (b) and 1(c),
reply filed by plaintiff No.1(c), rejoinder filed by defendant No.1(b)
and 1(c). Heard both the learned advocates.
2. This Notice of Motion is moved by defendant No.1 (b) and
1(c) praying to recall/set aside the order dated 19.03.2019 passed in
S.C. Suit No.8665 of 1994 whereby evidence of defendants was closed.
3. Perused the file. On going through the roznama, it appears
that the evidence affidavit of PW-1 Ashish Naik was filed along with
documents on 13.02.2013. Thereafter, the matter was fixed for
admissibility of documents. The cross examination was partly recorded
on 03.04.2013. Thereafter, on 26.04.2013 as defendants failed to cross
examine PW-1, no cross order was passed. Thereafter, on 08.05.2013
defendants have tendered the Notice of Motion No.1687/2013 for
setting aside the no cross order which was allowed on same day and
further cross examination was partly recorded. Thereafter, on
27.06.2013 court was busy. On 02.07.2013, plaintiff sought time. On
24.07.2013, application Exh.3 was heard by the court. Since
08.08.2013 matter remained pending for hearing and orders on Exh.3
and Exh.3A, and on account of busy board of court, transfer of the case,
filing reply and hearing of Notice of Motion No.2036/2014 which was
moved by plaintiffs to permit them to file additional evidence. After the
application Exh.3 and Exh.3A was disposed of on 20.11.2015, the
matter remained pending as defendants Nos.1 (a) to (c) and defendant
No.2 intended to challenge the aforesaid order. As per the order of
Hon'ble High Court in Writ Petition No.5317 of 2015 the matter was
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fixed for re-arguments on Exh.3 and Exh.3A. The application Exh.3
and Exh.3A were again decided on 22.02.2016 and thereafter it
appears that in order to impugn aforesaid order, stay was sought.
Thereafter, it appears that defendant No.1 (a) died and matter was
again pending for steps against defendant No.1(a) since 25.11.2016, so
also for filing of Chamber Summons No.507/2017, reply and hearing
and order on Chamber Summons till 08.11.2017. Matter was again
posted for cross examination of PW-1. It further appears that on
12.02.2018 no cross order was passed against defendant Nos.1(a) to
1(c) and defendant No.2. Learned advocate for defendant Nos.1(a) to
1(c) had filed application for withdrawal of their vakalatnama on
12.02.2018. Upon withdrawal of learned advocate for defenadnt
Nos.1(a) to 1(c) matter was posted for further evidence of plaintiff and
hearing of Notice of Motion No.2036/2014. Since 08.06.2018 to
10.08.2018 matter was pending for order on Notice of Motion
No.2036/2014. Thereafter, on 24.08.2018, additional evidence affiavit
was filed by plaintiff and notices were issued to defendant Nos.1(a) to
1(c) on court motion. Thereafter, the admissibility of documents along
with additional evidence affidavit was decided on 03.11.2018. As on
01.12.2018 defendants Nos.1(b), 1(c) and 3 to 7 were absent, no cross
order was passed against them. Thereafter, on 15.01.2019 plaintiff filed
evidence affidavit of witnesses PW-2 Ajit Rane and PW-3 Rajendra Patil
at Exh.70 and Exh.71 and matter was posted for cross examination of
witnesses. On 02.03.2019, evidence of plaintiff was closed. Matter was
then posted for evidence of defendants on 19.03.2019. On 19.03.2019,
no one was present for defendants and therefore, evidence of
defendants was closed. It is this order which is challenged by
defendants in present notice of motion.
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4. If the aforesaid roznama is taken into account, it can be
safely said that though it appears that there is long gap after which
defendants have moved present Notice of Motion, it cannot be said that
it was only because of them, the matter was prolonged. As stated
above, there were various notice of motions, chamber summons,
application exhibits which were moved by parties and were to be
decided by the court. The time also was expended in the transfer of the
matter. No doubt defendants have challenged the orders Exh.3 and
Exh.3A and considerable time has elapsed in same, however, same
being entertained and disposed of, defendants cannot be blamed.
Further, as earlier adjournments sought by defendants were allowed by
court, same cannot be considered while deciding this notice of motion.
It also appears on record that defendants Nos.1(a) to 1(c) did not
bother to remain present in court since the date of their advocate
withdrawing his appearance on 12.02.2018 till moving of this notice of
motion.
5. The reasons made out in the affidavit in support of
chamber summons are with respect to personal reasons of their family
members, illness of defendant No.1(b). The averments in the affidavit
in support of chamber summons is tried to be substantiated by the
medical documentary evidence of illness of defendant No. 1(b).
6. Learned advocate for plaintiff vehemently submitted that
though defendant is claiming inability to attend the court in present
case, he went to notary Mr. Arun Deshmukh for notarizing his evidence
to be submitted before Palghar Court in regular Civil Suit No.189/2012.
Similarly, on 22.06.2018 defendant No.1(b) appeared before Palghar
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Civil Court in same suit and submitted his deposition and further on
13.12.2018 the cross examination of defendant No.1(b) was recorded.
7. Even if the aforesaid facts pointed out by learned advocate
for plaintiff are taken into account, they are of month of
November – 2018. There is nothing on record to rebut the medical
illness of defendant No.1(b) which is substantiated by documentary
evidence on record. The averments in the affidavit in support of
chamber summons is not rebutted on record. As stated above, even if
defendant No.1(b) appeared for Palghar Suit before notary and in
court, they are pertaining to period of November – 2018. The present
notice of motion is moved in the month of July-2019. There is nothing
on record that at earlier point of time i.e. prior November – 2018
defendants were able to come in court and that whatever is testified in
the affidavit in support of notice of motion is false. The delay therefore,
on part of defendants would be at the most of 7 to 8 months even if the
case of plaintiff is accepted as it is.
8. It is always in the interest of the parties that the suit is
decided on merits. Denying defendants to put up their defence by
putting their evidence on record will lead to multiplicity of proceedings
and further delay in disposal of the suit. On the contrary, if defendants
are given opportunity to put their defence on record, it will help in
deciding the suit on merits which will be in the interest of both the
parties. The delay caused in moving this notice of motion has definitely
put plaintiff to incovenience however same can be compensated by
imposing heavy costs upon defendants.
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9. For all aforesaid discussion, in the interest of justice, the
Notice of Motion moved by defendants deserves to be allowed. In
result, I proceed to pass following order -
ORDER
1. The Notice of Motion No.2517/2019 is hereby allowed on costs
of Rs.1,000/-(Rs.One Thousand Only), to be paid by defendant
Nos.1(b) and 1(c) to plaintiff till next date.
2. On payment of aforesaid costs, the order dated 19.03.2019 shall
stand set aside.
3. On complaince of clause (1) of this order, and after cross
examination of PW-1 Ashish Naik and other witnesses, of
plaintiff, defendants are permitted to lead their evidence.
4. In view of the above directions, Notice of Motion No. 2517/2019
is disposed of.
(SMT C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 26.02.2021 City Civil Court, Gr. Bombay
Directly Dictated on computer :26.02.2021.
Checked on :03.03.2021.
Signed on :03.03.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 08.03.2021, 11.55 am.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
26.02.2021
JUDGMENT/ORDER signed by P.O.
on
03.03.2021
JUDGMENT/ORDER uploaded on 08.03.2021
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