Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3504/19(Suit-2838/14)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3504/2019
(CNR No.MHCC010095532019)
IN
S.C. SUIT NO.2838/2014
Mr. Jamshed Keki Mehta ..Plaintiff
V/s.
Mrs Katy Nowzer Mehta ..Defendant
Appearances :
Ld. Adv. Mrs Zenobia S. Irani/ Nair for plaintiff.
Adv. S.G Abbas Kazmi and Mr K.S. Tripathi for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03.
Date : 11.11.2021.
ORDER
1. The defendant by way of instant notice of motion seeking
following reliefs :
(a) That the plaintiff's above suit no. 2838/2014 be dismissed for
noncompliance of order dated 26.2.2019 of this Hon'ble
Court as provided under Order 39 Rule 11 of the Code of
Civil Procedure, 1908 (Bombay Amendment);
(b) That pending the hearing and final disposal of the above
Notice of Motion, further hearing of the above suit be stayed;
(c) Interim and adinterim order in terms of prayer (b) be
granted;
(d) that cost of this Notice of Motion be provided for;
(e) For such other and further reliefs under the nature and
circumstances of the matter be granted.
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2. It is contended by the defendant that, the plaintiff has filed
Suit for damages against defendant for alleged defamatory statements.
After framing of issues, this court appointed Court Commissioner in
presence and with consent of both sides. The plaintiff failed to appear
before Court Commissioner for recording of evidence. Therefore, the
defendant contended that, the plaintiff committed disobedience of the
order of the court and as per Order 39 Rule 11 of the CPC , the suit
needs to be dismissed.
3. Per contra, Ld Advocate for the plaintiff opposed the notice
of motion by filing say. It is contended by the plaintiff that, he has
never agreed or applied for appointment of the Court Commissioner.
Moreover, the charges of the Court Commissioner are at higher side,
which he is unable to bear. Therefore, he prayed for rejection of the
Motion.
4. Heard both sides. Perused Motion, reply, rejoinder as well
as Roznama dated 26.2.2019 by which my Ld Predecessor appointed
the Court Commissioner for recording of evidence. It appears from the
Roznama that, on that day, both parties were present; more particularly
the plaintiff in person was present and looking to the nature of the suit,
my Ld Predecessor appointed the Court Commissioner for recording of
evidence and also directed both the sides to bear expenses of the
Commissioner equally.
5. Admittedly, the plaintiff failed to appear before the Court
Commissioner. I have perused the provisions of Order 39 Rule 11 of
CPC, which provides for dismissal of suit in case of disobeying the order
of the Court. It is well settled that, the provisions of CPC are hand made
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of justice. It cannot be used to cause injustice to the parties. In the
event suit is dismissed for such reasons, certainly a great prejudice will
cause to the plaintiff.
6. The plaintiff's advocate made a statement that, he will
take instructions to suggest name of any other Court Commissioner for
recording of evidence or even to continue before the same
Commissioner. In view of above statement, I am of the view that, the
Motion cannot be allowed and same needs to be dismissed. Thus, I
Proceed to pass following order:
ORDER
1. Notice of Motion No.3504/2019 is dismissed.
2. Parties to bear their own costs.
3. Notice of Motion is disposed of accordingly.
Sd/
(A.H.Laddhad)
Judge,
Dated : 11.11.2021 City Civil and Sessions Court,
Dictated on : 11.11.2021 Greater Bombay (CR 03)
Typed on : 11.11.2021
Draft Submitted on : 12.11.2021
Signed on : 12.11.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
12.11.21 at 2. pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 11/11/2021
JUDGMENT/ORDER signed by P.O. on 12/11/2021
JUDGMENT/ORDER uploaded on 12.11.2021
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