Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.3797/2019
in S.C. Suit No.2010/2010
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.3797 of 2019
(CNR NO. MH CC010102692019)
In
S.C. SUIT No.2010 of 2010
Smt. Diwaliben Bechardas Rathod (Deceased)
Mukund Bechardas Rathod ….Plaintiff
V/s.
Smt. Ranjan Suryaprakash Hansora & Ors. ....Defendants
And
Mr. Arvind Bechardas Rathod
…..Applicant/defendant No.5
Appearance:
None present for the plaintiff.
Mr. Redekar, Advocate for the defendant Nos.1 & 2.
Mr. M.S. Singh, Advocate for the defendant No.5
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 16 th January, 2020.
ORDER
1. By this draft notice of motion, defendant No.5 has prayed to
condone the delay for taking out present notice of motion and for setting
aside order dated 12.02.2019 for closing evidence of defendant No.5
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2 Notice of Motion No.3797/2019
in S.C. Suit No.2010/2010
and for permission to take on record the evidence of defendant No.5.
2. In affidavit in support, it is averred by defendant No.5 that
after closing the evidence of plaintiff and defendant Nos.1 and 2,
defendant Nos. 3 and 4 did not adduce their evidence. Being Senior
Citizen, defendant No.5 is suffering from various health problems and he
was admitted in the Hospital for the treatment. At present, he is residing
at Murbad, DistrictRaigad. Due to his health problems and fractrue, he
is not able to travel. Several times he was instructed by his Advocate for
tendering evidence but on 12.02.2019, the evidence close order was
passed against him. According to defendant No.5, he has share in the
suit premises being tenant and therefore it is requested that in the
interest of justice, notice of motion may kindly be made absolute.
3. Defendant Nos.1 and 2 filed their reply on the notice of
motion itself. It is submitted that the prayers are not maintainable in
the eyes of law. Notice of motion is taken out after 7 months of passing
order. The grounds set out in the affidavit are not satisfactory and no
documents have been tendered in support of said contention. Defendant
No.5 is real brother of plaintiff and in order to cause delay in the matter,
in collusion they have filed present notice of motion. For all these
reasons, it is prayed that the notice of motion may kindly be dismissed
with cost.
4. Heard learned Advocate of defendant No.5 and learned
Advocate of defendant Nos.1 and 2. Learned Advocate for defendant
No.5 submitted that since he was admitted in the Hospital for treatment
and due to various health problems, he could not adduce evidence on
fixed date. Therefore, notice of motion may kindly be considered.
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3 Notice of Motion No.3797/2019
in S.C. Suit No.2010/2010
Learned Advocate for defendant Nos.1 and 2 submitted that
medical certificate relied upon by the defendant No.5 reflects that the
health of defendant No.5 was normal and therefore no justifiable reason
is shown in support of notice of motion. Accordingly, it is prayed by
them that notice of motion may kindly be dismissed with cost.
5. Record shows that on 12.02.2019, right of defendant No.5 to
adduce evidence was forfeited and the matter was kept for final
argument. On 05.03.2019, Advocate of plaintiff filed application Exh81
for issuance of witness summons to defendant No.3. The said application
was decided on 04.07.2019 and evidence of PW6 was completed on
01.08.2019. On 26.09.2019, present notice of motion was taken out for
setting aside order dated 12.02.2019. Thus, it is the matter on record
that after passing of two months of recording evidence of PW6, present
notice of motion is filed. The report of Ultrasonography of Abdomen and
Pelvis relied upon by the defendant No.5 reflects that the upper
abdominal symptoms could be related to acidpeptic disorder. Defendant
No.5 was admitted in the Hospital on 19.04.2013 and was discharged on
03.05.2013. This document can not be considered as he was admitted
in the Hospital in the year 2013. The Ultrasonography report is dated
26.08.2019. On that date the matter kept for final argument and
therefore it appears that adjournment was sought on behalf of defendant
No.5. Therefore, it can not be said that defendant No.5 has taken out
false grounds to set aside the order dated 12.02.2019. However, it can
not be ignored that delay is caused on behalf of defendant No.5.
Defendant No.5 is real brother of plaintiff. Resultantly, I am of the
opinion that notice of motion needs favourable consideration for
tendering evidence of defendant No.5, in order to decide controversial
issues between the parties. Accordingly, I pass following order.
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4 Notice of Motion No.3797/2019
in S.C. Suit No.2010/2010
ORDER
1) Notice of Motion No.3797/2019 is made absolute in terms of
prayer clause (a) & (b) subject to cost of Rs.5,000 / (Rs. Five
Thousand Only) to be paid to defendant Nos.1 and 2 on or before
next date.
2) Payment of cost is condition precedent and failure to make
compliance of the same, will automatically result in dismissal of
notice of motion.
3) After payment of cost, evidence of defendant No.5 be taken on
record.
4) Notice of Motion No.3797/2019 is disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 16/01/2020
Dictated on : 16.01.2020
Transcribed on : 18.01.2020
Signed on : 20.01.2020
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in S.C. Suit No.2010/2010
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
21.01.2020 12.55 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 16.01.2020
Order signed by P.O. on 20.01.2020
Order uploaded on 21.01.2020
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in S.C. Suit No.2010/2010
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