Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3180/19 ..1.. Suit No.100/2014
CNR No.MHCC010086452019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3180 OF 2019
IN
SUIT NO.100 OF 2014
Ramesh Prakash Yadav .. Plaintiff
Versus
Gayaprasad Indrasen Gupta .. Defendant
Ms. Jamila Khan, advocate for plaintiff
Defendant in person.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 23rd November, 2019
ORAL ORDER
Notice of motion is taken out by defendant to condone delay
caused in taking out present notice of motion and to set aside order
dated 09.07.2019 closing cross examination of plaintiff by defendant.
2. It is the contention of defendant that his advocate conducted
cross examination of plaintiff on 08.04.2019 in Court Room No.9
however, the cross examination was incomplete. Matter was adjourned
to 17.06.2019 and on that date it was informed that present matter has
been transferred to this Court. On that date, he tried to trace out the
matter but he could not trace the same. On 09.07.2019, matter was on
the board of this Court for further cross examination of plaintiff but his
C.A. could not remain present on that date as he was unwell and
suffering from high fever. His advocate was also not present before this
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NM No.3180/19 ..2.. Suit No.100/2014
Court due to his illhealth. Consequently, an order was passed to close
the cross examination on behalf of defendant and plaintiff was directed
to produce the witness. In above circumstances defendant has made
prayer in above terms.
3. Plaintiff filed reply to notice of motion and opposed it. He has
not disputed that he was partly cross examined by advocate for
defendant but thereafter defendant had failed to attend the court on
two occasions. Defendant has not given proper and sufficient reason to
condone the delay caused and prayed to dismiss notice of motion.
4. Perused notice of motion, affidavit in support of it, reply of
plaintiff and roznamas of the present suit. Heard learned advocate for
plaintiff and defendant in person.
5. On perusal of roznama dated 29.03.2019 it is clear that cross
examination of PW1 was partly recorded. Thereafter matter was
adjourned to 08.04.2019. On that date, matter was adjourned to
17.06.2019. On both above referred dates i.e. 29.03.2019 and
08.04.2019 matter came on the board of court Room No.09 while on
17.06.2019 it came on the board of this Court but none of the parties
were present and matter was adjourned to 09.07.2019. On 09.07.2019
only plaintiff was present but defendant and his advocate were absent.
In above facts I passed order to the effect that 'matter is to proceed
further without cross examination on the part of defendant.' Thus, it is
clear that said order is passed under Order XVII Rule 2 read with Order
IX Rule 6 of CPC. In above set of facts notice of motion ought to have
been filed within 30 days from the date of order but present notice of
motion is taken out by defendant on 16.08.2019 and thus delay of 8
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NM No.3180/19 ..3.. Suit No.100/2014
days has occurred in taking out present notice of motion. In my view
delay caused is not inordinate and deliberate as it is clear that
defendant has taken out present notice of motion on the adjourned date
itself. In the facts of matter I am inclined to condone the delay caused
in taking out present notice of motion. Defendant has filed medical
certificate issued by Dr. Satish Patil which shows that C.A. of defendant
was ill from 08.07.2019 and he was advised rest for two days. No
document is produced to show that defendant was also ill on that date.
May it be so, reason is also assigned that advocate for defendant was
also ill on that date because of which he could not remain present
before the court in prsent matter. In my view reason assigned is
sufficient to set aside order dated 09.07.2019 in the interest of justice,
equity and fair trial I am inclined to allow notice of motion subject to
payment of certain costs by defendant to plaintiff. Hence, pass following
order:
ORDER
1. Notice of Motion No.3180 of 2019 is allowed and made absolute
in terms of prayer clauses (a) and (b) subject to payment costs of
Rs.1000/ (Rupees one thousand only) to plaintiff within period of one
week from the date of this order.
Defendant is at liberty to deposit the costs payable to plaintiff in
the Court.
2. On payment of costs to plaintiff, defendant is at liberty to cross
examine PW1.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 23.11.2019 Gr. Bombay
Typed on : 23.11.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26.11.2019, 4.00 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
23.11.2019
JUDGMENT/ORDER signed by P.O.
on
25.11.2019
JUDGMENT/ORDER uploaded on 26.11.2019
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