Order 4

Order Details: Notice of Motion
Pdf Text: NM No. 101208/ 2023 Moolchand – Haresh Order (Exh.32) 1 of 5
MHCC01-003362-2023 Filed on : 21.03.2023
Arguments Heard : 21.06.2023
Decided on : 21.06.2023
Duration : 3 Months
City Civil & Sessions Court, Greater Mumbai
Court Room No. 31
(District & Sessions Judge : Vijay S. Hingne, LL. M.)
Notice of Motion No. 101208 / 2023
from
Commercial Suit No. 100095 / 2019
Plaintiffs : Moolchand Dalichand Jain + 2
VERSUS
Defendant : Haresh Sankalchand Hirani
Appearances :
Plaintiff : Adv. Rahul Choubey
Defendant : Adv. Ms. Bhavini Shah i/b. Monel Thakkar
Notice of Motion U / Order XVIII Rule 17 of CPC,
for recall PW1 for cross-examination.
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ORDER
(Delivered on this 21st Day of June, 2023)
On 08.07.2019 Moolchand Jain, aged 78 years has
preferred Commercial Suit No. 100095 / 2019, for recovery of
. 7,00,000/- with interest @ 12 % p. a.	₹
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Chronology of events :
2) On 19.12.2019, defendant Haresh filed his Written
Statement.
On 17.02.2020, plaintiff No. 1 Moolchand filed his
evidence-affidavit. On 30.03.2021 i.e. almost after one year, he
exhibited his documents. Accordingly matter got adjourned for
cross-examination of PW1 Moolchand at the hands of defendant.
On 30.09.2021, my Learned Predecessor passed order regarding
case management, directing parties to follow the schedule.
Adjournment application filed by defendant on
24.03.2022 was allowed by my Learned Predecessor, subject to
cost of .	₹ 1,000/-. Thereafter, again cross-examination was not
conducted by defendant.
On 09.12.2021, plaintiff closed his evidence.
On 05.04.2022, my Learned Predecessor observed that,
defendant is not turning for cross-examination of PW1
Moolchand and that plaintiff has already closed his evidence.
Accordingly my Learned Predecessor closed cross-examination
of PW1 Moolchand at the hands of defendant. Thereby, the case
was adjourned for evidence of defendant.
On 04.08.2022, defendant filed application for recording
of evidence through Video Conferencing. Same was allowed by
my Learned Predecessor. On 18.08.2022, defendant examined
DW1 Haresh through VC. Plaintiff also conducted cross-
examination on same date. On 01.11.2022, defendant closed his
evidence. On 06.01.2023, plaintiff concluded his argument.
Present Notice of Motion :
3) On 10.03.2023, defendant appointed his new counsel,
who on 31.03.2023 preferred present Notice of Motion with
prayer that defendant be permitted to cross examine PW1
Moolchand.
Notice of Motion is under strong objection vide reply at
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Exh.33 by the plaintiff contending that PW1 Moolchand is of 82
years old. Defendant has sufficient opportunities to conduct cross-
examination, but they failed. Hence, it be rejected.
Points for determination :
4) Heard Learned Adv. Shri Rahul Choubey for plaintiff.
Heard Learned Adv. Ms. Bhavini Shah for defendant. Perused
record. Points for determination, findings and reasons are as
follows :
Points Findings
1. Is defendant entitled to recall
PW1 for cross-examination?........ In the Affirmative.
2. What Order?................................ As Final Order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
5) It is always preferable that, both contesting parties are
providing equal and sufficient opportunities to raise their
contentions and to prove their case. In case if any party, for
technical reasons, is deprived of contending his case, then it often
leads to improper adjudication. That may lead to complexity in
the dispute and may also lead to multiplicity of litigation. If that
happens, then it may drag the parties into further litigation,
causing serious prejudices to them. Hence, it is always in the
interest of justice and so also in the interest of the parties that,
they are provided fullest opportunities to raise their contentions.
6) Considering that, plaintiff had already closed his
evidence and Suit was posted for arguments of defendant and
further considering the specified value involved in the Suit, the
Notice of Motion can be allowed, subject to imposing of the cost.
In given facts and circumstances, the cost of . 5,000/- will meet	₹
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the ends of the justice. Accordingly, the Notice of Motion is
allowed by following Order :
ORDER
1. Notice of Motion No. 101208 of 2023, is allowed,
subject to Cost of . 5,000/- ( . Five Thousand Only).	₹ ₹
2. The defendant shall pay said Cost on next date i.e. on
01.07.2023, the date on which PW1 shall also remain
present for his cross-examination.
3. Aforesaid date is fixed as per submission of both
counsels.
4. Considering age of the litigant, parties to expedite the
Suit.
5. Order dictated and pronounced in Open Court.
Mumbai
Dated : 21.06.2023
(Vijay S. Hingne)
District Judge, Court Room No.31
City Civil & Sessions Court,
Greater Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22.06.2023 12.30 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. Vijay S.Hingne
(C.R.NO. 31)
Date of Pronouncement of Judgment/Order. 21.06.2023
Judgment/order signed by P.O on 21.06.2023
Judgment/order uploaded on 22.06.2023
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