Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.2221/2018 in S.C. Suit No. 3745/2007
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No. 2221 OF 2018
IN
S.C. SUIT NO. 3745 OF 2007
Smt. Parvati Babaji Kudtarkar ]...Plaintiff.
Vs.
The Competent Authority, PWD Mumbai. ]...Defendant.
Appearance :
Advocate Ms. Kranti Anand for the Plaintiff.
Advocate Mr. Bharat Choudhary for the defendant.
CORAM : HIS HONOUR JUDGE
SHRI NANDKISHOR L. MORE
(Court Room No.12)
DATED : 25th JUNE, 2018.
O R A L O R D E R
The present Notice of Motion is taken out by the plaintiff
to set aside “No cross examination” Order of the defendant's witness
dated 14.03.2017.
2. It is the contention of the plaintiff that, initially defendant
had filed affidavit of evidence in lieu of examination in chief of one Mr.
Siddharth Gopal Jadhav, but subsequently it was discarded. Thereafter,
defendant No.1 filed several affidavits of evidence of their witnesses Mr.
Vijay Sakharampant Lathkar. Thereafter, defendant filed affidavit of
evidence of Mr. Subhash Jagannath Mane in lieu of examination in
chief on 04.03.2017 and matter was posted for crossexamination of
defendant's witness on 14.03.2017, that day first time defendant's
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Advocate stated that they are not going to examine their first two
witnesses i.e. Siddharth Gopal Jadhav and Vijay Sakharampant Lathkar
and due to absence of plaintiff Advocate no cross examination came to
be passed against the plaintiff. It is submitted that, the mother of
plaintiff's Advocate expired on 16.01.2017 and due to it plaintiff's
Advocate was under depression. So also, plaintiff is very old and most
of the time stays alone at home as the children of the plaintiff doing
shift jobs mostly related to travel and therefore, the plaintiff took
assistance to travel from her house to Court due to old age and due to
weakness and therefore, prayed that plaintiff be allowed to cross
examine the defendant's witness for adjudicating the suit on merits. The
delay in filing present Notice of Motion is not deliberate, but due to the
genuine circumstances suffered by the plaintiff and her Advocate which
was their beyond control.
3. Defendant No.1 filed affidavit in reply to this Notice of
Motion and contended that, the present Notice of Motion is not tenable.
The present matter was fixed for arguments after giving several
opportunities to the plaintiff and defendant had completed their
arguments. Thereafter, plaintiff took out this Notice of Motion for
setting aside “No crossexamination” Order as the plaintiff has
miserably failed to make out the case for condonation of delay in filing
present Notice of Motion. There is no evidence at all produced by the
plaintiff to prove the veracity of her statements, regarding
hospitalization as alleged. Plaintiff has filed Notice of Motion for
setting aside Order dated 14.03.2017. Instead of keeping a focus on
subsequent Roznama after 14.03.2017 till 06.06.2018, the plaintiff tried
to discuss the facts and circumstances before 14.03.2017, which is
completely irrelevant and unnecessary. After passing “No cross
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examination” Order, on 14 dates matter was adjourned for arguments,
but plaintiff have not taken steps or given satisfactory explanation
about failure on her part.
4. Heard the Ld. Ms. Kranti Anand for the plaintiff and the Ld.
Advocate Mr. Bharat Choudhary for the defendant No.1. It appears from
the record that, after passing Order on 14.03.2017 matter was
adjourned from time to time. It is to be noted that, on 4.03.2017 when
the affidavit of evidence of Mr. Subhash Mane came to be filed on that
day junior Advocate for the plaintiff was also present and in his
presence matter was adjourned for crossexamination of Mr. Subhash
Mane (D.W.3). Therefore, it cannot be said that, plaintiff was caused
any prejudice for not giving the reason in respect of discarding the
evidence of defendant witness Nos. 1 and 2. After passing “No cross
Order” matter was adjourned to 03.04.2017, thereafter 17.04.2017. On
24.04.2017, 13.07.2017 and 13.11.2017 junior Advocate for the
plaintiff was also present. It seems that, plaintiff had been negligence in
prosecuting the suit.
5. The Ld. Advocate appearing for defendant No.1 submitted
that whatever reasons recorded in the Notice of Motion about the illness
of plaintiff and the death of plaintiff's Advocate mother were happened
before No crossexamination order passed by this Court. Therefore,
plaintiff cannot take excuses for such reasons, it is matter of record that
the learned Advocate for defendant No.1 completed his argument and
the matter was posted for plaintiff's argument. The present suit is of 10
years old. No justified reasons set out by the plaintiff even to condone
the delay in filing Notice of Motion. However, to avoid further
complications and delay in the proceeding and as the Ld. Advocate for
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the plaintiff assured to this Court that, she will complete the cross
examination of defendant's witness and final argument on same day
and will not ask any further adjournment in the matter. Considering
the assurance given by the plaintiff's Advocate, I accept her request.
However, it is also the matter of record that, the matter is pending for
final argument since April, 2017. As I mentioned above, plaintiff had
been negligent in prosecuting the suit, but to give fair opportunity to
the plaintiff as last chance this Notice of Motion can be allowed, subject
to the cost of Rs. 5,000/ to be credited with District Legal Services
Authority. It is made clear that, no further adjournment will be granted
to the plaintiff at any cost or reasons. Hence, the Order:
O R D E R
1. Notice of Motion No. 2221/2018 is made absolute in terms of
prayer clause (a) and (b) subject to the cost of Rs. 5,000/ to be
credited with District Legal Services Authority.
2. Defendant No.1 is directed to keep present their witness on next
date.
3. Plaintiff is directed to conduct the crossexamination of defendant
No.1's witness on fixed date, without fail a nd shall complete
final arguments on same day.
Date : 25.06.2018 [N.L. MORE]
Judge, City Civil Court,
(C.R. No.12), Gr. Mumbai.
Dictated on : 25.06.2018
Typed on : 27.06.2018
Signed by HHJ on : 28.06.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.06.2018, 5:47 p.m. SUBHASH S. POUL
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI NANDKISHOR L. MORE
(Court Room No.12)
Date of Pronouncement of
JUDGEMENT/ORDER
25.06.2018
JUDGEMENT/ORDER signed by
P.O. on
28.06.2018
JUDGEMENT/ORDER uploaded on 29.06.2018
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