Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3408-2019 in Suit no. 9882-1989
1 Date : 11.10.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3408 OF 2019
IN
SUIT NO. 9882 OF 1989
(CNR NO.MHCC01 0093002019)
Zeenia S. Lawyer Alias Zinia S. Lawyer .. Plaintiff
Versus
Girdhar Gobindram Gianchandani & Ors. .. Defendants
Appearances :
Adv. Mr. Viven Potade I/b. S.Ashwinikumar & Co. for
defendant present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date :11.10.2019
ORDER
1. The defendant no. 1 has filed instant Notice of Motion for
recording Crossexamination of plaintiff witness by this Court in
lieu of Court Commissioner.
2. It is contended by the defendant no. 1 that this Court vide,
Order dated 07.08.2019, appointed the Court Commissioner for
recording Crossexamination of plaintiff witness. It is submitted
that the suit involved complex nature of facts and law. Therefore,
it is just and proper to record Crossexamination of plaintiff
witness by Court, instead of recording of Crossexamination by
Court Commissioner. It is further submitted that, this Court needs
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to observe the demeanor of the witness before assessing her
creditability. The plaintiff while applied for the Court
Commissioner, failed to submit any bonafide reasons for seeking
appointment of Court Commissioner. The appointment of Court
Commissioner is in utter violation of Order 26 Rule 1 to 4 of Code
of Civil Procedure. Hence, defendant no. 1 prayed for allowing
present Notice of Motion.
3. The plaintiff opposed the instant Notice of Motion by filing
reply. It is contended by the plaintiff that the present Notice of
Motion is exfacie not maintainable. In view of the fact that the
order appointing Court Commissioner was passed with consent of
the defendant no. 1. In the event, if defendant no. 1 alleged that
the order appointing Court Commissioner is without hearing to
them, in that eventuality also the present defendant no. 1 can not
challenged the said order by filing present Notice of Motion. In
support of his submission, the plaintiff relied on Writ Petition No.
9999 of 2013 in case of Rentworks India Pvt. Ltd. V/s. India
Infoline Ltd.
4. It is contended by the plaintiff that before filing application
for appointment of Court Commissioner, they have served with the
notice to the defendant no. 1 on 07.01.2019, 08.01.2019 and
17.01.2019. The defendant no. 1 chose not to appear on
18.01.2019 and therefore, this Court allowed the application of
the plaintiff to appoint the Court Commissioner.
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5. It is further contended by the plaintiff that the defendant by
way of Notice of Motion No. 639 of 2019 sought setting aside
order dated 18.01.2019. However, on 07.08.2019 as the
defendant was not agreeable on the name of Commissioner,
therefore, another Commissioner was appointed by directing
Registrar to furnish the name. Defendant no. 1 at the time of
filing of Notice of Motion No. 639 of 2019 did not came up with
the case that the suit involved complex questions of law and facts.
Therefore, the Crossexamination should be conducted by the
Court. The defendant no. 1 could have raised the aforesaid issue
in the Notice of Motion No. 639 of 2019 which he failed to.
Therefore, the aforesaid issue can not be raised in view of the
barre of constructive resjudicata. In support of his submission,
the plaintiff relied on Judgment of Hon’ble Apex Court, reported
in (2010) 10 Supreme Court Cases 141 in case of Alka Gupta
V/s. Narender Kumar Gupta.
6. It is contended by the plaintiff that Court Commissioner can
be appointed where witness is unable to appear before Court.
Moreover, in the present case, plaintiff is having age of 70 years,
therefore, this Court rightly appointed the Court Commissioner.
The Court Commissioner can also record the demeanor of the
witness. There is no prohibition for the same. The defendant no.
1 is trying to delay the proceeding by filing baseless application. In
order to substantiate aforesaid contention, the plaintiff relied on
the Judgment of Hon’ble Apex Court reported in (2005) 6
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4 Date : 11.10.2019
Supreme Court Cases 344 in case of Salem Advocate Bar
Association V/s. Union of India.
7. Heard both the sides. Perused Notice of Motion, reply as
well as rejoinder. It is not in dispute that the plaintiff filed
application below Exh. 51 for appointment of Court Commissioner.
It appears from the record that before filing of the aforesaid
application, the plaintiff tried to serve defendant no. 1 twice.
However, inspite of service, the defendant no. 1 failed to appear.
Therefore, on 18.01.2019, my predecessor allowed the application
and appointed Advocate Mr. Rubin Vakil as Commissioner for
recording Crossexamination of plaintiff. The defendant no. 1
instead of challenging the aforesaid order, on 11.02.2019 filed
Notice of Motion No. 639 of 2019 for setting aside and recalling of
order dated 18.01.2019 on the ground that they have no consent
on the name of Advocate Mr. Rubin Vakil be appointed as
Commissioner. Therefore, on 07.08.2019 during course of hearing
of Notice of Motion No. 639 of 2019, this Court with the consent
of Advocate of defendant no. 1 directed the Registrar to appoint
another Court Commissioner and thus, Notice of Motion No. 639
of 2019 came to be disposed off.
8. It is pertinent to note that inspite of defendant no. 1
consenting for appointment of another Court Commissioner filed
present Notice of Motion praying for recording of Cross
examination of PW1 through Court. In my view, the defendant no.
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1 ultimately seeking setting aside order dated 07.08.2018 passed
in Notice of Motion No. 639 of 2019 as well as order dated
18.01.2019 passed on application below Exh.51. The defendant
no. 1 is not praying for recalling of the order of appointing Court
Commissioner. Hence, in my view, this Court can not consider
present Notice of Motion as if seating in the Appeal. If the
defendant no. 1 is agreeved by the order appointing Court
Commissioner, ought to have preferred Appeal against the same
before Hon’ble High Court. Hence, in my view, present Notice of
Motion is not maintainable at all and same needs to be dismissed.
9. It appears from the conduct of the defendant no. 1 that
inspite of service of application below Exh. 51, the defendant no. 1
failed to file reply and keep mum till passing of order and
subsequently filed another Notice of Motion showing dis
agreement on the name of Court Commissioner. However, while
disposing of Notice of Motion No. 639 of 2019, the Advocate for
defendant no. 1 specifically consented for appointment of another
Court Commissioner. Inspite of the aforesaid fact, now the
defendant no. 1 has came up with the new case deviating from the
earlier consent given. Thus, from the conduct of defendant no. 1,
it appears that defendant no. 1 is protracting the matter and
avoiding to conduct Crossexamination of plaintiff witness.
10. It is pertinent to note that the present matter is of 30 years
old and most of the parties are senior citizens. Therefore, in my
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6 Date : 11.10.2019
view, for the conduct of the defendant no. 1, he is liable to pay
cost of Rs. 10,000/ to the plaintiff. Thus, I proceed to pass the
following order :
ORDER
1. Notice of Motion No. 3408 of 2019 is hereby dismissed with
cost of Rs. 10,000/ to be payable by the defendant no. 1 to
the plaintiff.
2. Parties to appear before the Court Commissioner as
appointed by Registrar and complete the Crossexamination
of plaintiff witness within a period of one month from the
date of present order.
3. The copy of the order be forwarded to the Registrar for
intimation to the Commissioner.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 11.10.2019 Gr. Bombay
Dictated on : 11.10.2019
Typed on : 11.10.2019
Draft Submitted on : 11.10.2019
Checked on : 14.10.2019
Signed on : 14.10.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
14/10/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
11/10/2019
JUDGMENT/ORDER signed by P.O.
on
14/10/2019
JUDGMENT/ORDER uploaded on 14/10/2019
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