Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.3511 OF 2019
IN
S.C.SUIT NO.286 OF 2014
1. Bashir Usman Shaikh,
2. Smt.Ruksanana Bashir Shaikh ... Plaintiffs
Versus
1. Mohammand Yahya Barati Shaikh,
2. Mrs.Sajida Mohammand Yahya Barati Shaikh,
3. Imranh Mohammand Yahya Barati Shaikh,
4. Irfan Mohammand Yahya Shaikh,
5. Mrs.Parveen Aslam Shaikh ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 4th DECEMBER, 2020
Mr.Rajendra Bhandary, ld. adv. for plaintiffs.
Mr.Abdul Rauf Shaikh, ld adv. for defendants.
O R D E R
1. This Notice of Motion is taken out by defendants for setting
aside No Cross Order passed against defendants on 13/08/2019 and to
allow defendants to crossexamine plaintiffs.
2. Defendant Mr.Mohammed Yahya Barati Shaikh has filed
his affidavit in support of notice of motion contending that this court
vide its order dated 13/06/2019 directed defendants to cross examine
plaintiff on 13/06/2019. On said date defendant no.2 along with
advocate Mr.Shaikh was present, however plaintiff remained absent
even though plaintiff's advocate Mr.Bhandari was present. Thereafter,
Court became busy in recording evidence in Suit No.9156/1994 and the
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matter came to be adjourned to 13/08/2019. On 04/08/2019 there
was flood like situation in Mumbai and defendants' advocate was
stranded into the waters at Taximens Colony adjacent to the Meethi
River. From the evening of 05/08/2019 the illness of advocate for
defendants was unbearable with high fever and continues vomiting
therefore, defendants' advocate went under medical treatment from
06/08/2019 to 13/08/2019 and Dr.Suhail N. Khan issued a certificate
of medical leave for defendants' advocate. Copy of said certificate is
annexed to the affidavit at Exh.A. It is contended that on 13/08/2019
defendants' advocate Mr.Shaikh was not keeping well and accordingly
instructed defendants to convey his personal request to the Court,
however in the absence of any medical certificate with defendants, the
Court has passed No Cross Order against defendants. It is contended
that on 13/06/2019 as per the directions of the Court defendants and
their advocates were present for crossexamination of plaintiff, however
plaintiff himself was absent and on 13/08/2019 defendants' advocate
was suffering from week long illness and was unable to appear before
the Court. As the condition was beyond control of defendants' advocate
due to medical reasons hence, crossexamination of plaintiff could not
be recorded on 13/08/2019 and no cross order came to be passed.
Hence, according to defendants, no cross order is necessary to be
recalled and it is necessary to permit defendants to record cross
examination of plaintiff. Else defendants will suffer and even if the
notice of motion will be allowed no prejudice will be caused to the
plaintiff. With the help of those contentions, defendants have prayed to
allow the notice of motion.
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3. Plaintiff has resisted the notice of motion by filing his
affidavit contending that last chance was granted to defendants to
crossexamine plaintiff on 04/08/2019. Further plaintiff had filed his
affidavit of examination in chief on 17/09/2016 and defendants'
advocate was not appearing in the matter on several dates and
defendants were taking time to engage another lawyer. According to
plaintiff, roznama shows that defendants have sought several
adjournments on various grounds and therefore, notice of motion
according plaintiff, is liable to be dismissed. It is denied that on
04/08/2019 there was flood like situation in Mumbai and it is denied
that defendants' advocate was suffering from illness on 13/08/2019. It
is alleged that defendants have caused inconvenience to plaintiff for
several dates by seeking adjournments on various grounds. Lastly
plaintiff has contended that no cross order passed against defendants
may be set aside by ordering defendants to pay heavy costs to plaintiff.
4. Arguments of plaintiffs' advocate and defendants advocate
are heard. Plaintiffs' advocate submitted that inspite of giving ample
opportunity, defendants have not crossexamined plaintiff hence notice
of motion is liable to be dismissed. Defendants' advocate has submitted
that there was heavy rain fall in Mumbai and defendants' advocate
resides nearby Meethi River was unable to attend the Court due to
illness, hence no cross order came to be passed against defendants.
According to defendants' advocate defendants have justified the
grounds for setting aside no cross order. The medical certificate Exh.A
filed by defendants along with his affidavit shows that defendants'
advocate Mr.Shaikh was advised by doctor to have medical leave in
between 06/08/2019 to 13/08/2019 as he was suffering from acute
febrile illness.
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5. Considering the medical certificate on record I find that
defendants have made out justifiable ground for setting aside no cross
order passed against them. However, plaintiff has prayed for heavy
costs. Considering the illness of defendants' advocate, I find that notice
of motion can be allowed subject to costs of Rs.1,500/ to be paid by
defendants to plaintiff. Hence, I proceed to pass following order.
O R D E R
Notice of Motion No.3511/2019 is made absolute in terms of
prayer clause(a) subject to cost of Rs.1,500/ to be paid by
defendants to plaintiff.
Sd/
(K.P.NANDEDKAR)
04/12/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 04/12/2020
Transcribed on : 04/12/2020
Signed by HHJ on : 04/12/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
04/12/2020 4.20PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 04/12/2020
Judgment/order signed by P.O on 04/12/2020
Judgment/order uploaded on 04/12/2020
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