Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 3801/19 (Suit 3796/09)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 3801/2019
(MHCC01-010273-2019)
IN
S.C. SUIT NO. 3796/2009
1. Shaikh Rehana Abdul Rehman
2. Famida Noor Mohammed Ansari
3. Shaikh Jameela Noor Mohammed
4. Yasmin Salim Khimani. ..Plaintiffs
V/s.
1. Shaikh Mehboob Sayyed Abdul Majeed,
2. Nasreen Shaikh wd/o. Mehmood Shaikh
3. Zoheb Shaikh s/o. Mehmood Shaikh
4. Shamaila Shaikh D/o. Mehmood Shaikh
5. Salman Shaikh s/o. Mehmood Shaikh
6. Shaikh Ayub Mohammed.
7. Shaikh Munnawar Noor Mohammed
8. Ashok Chhajed. ..Defendants
Appearance:
Adv Mr. R.K. Dube h/f. Mr R.P. Ojha for plaintiffs.
Adv. Ms Vrushali Kabare for the defendants no.1 to 5.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 2.12.2020
ORAL ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
of Shaikh Rehana Abdul Rehman (plaintiff no.1) and affidavit in reply
filed on behalf of defendant Shaikh Mehboob Sayyed Abdul Majeed.
2. I have heard oral submissions of Ld. Advocate for the
plaintiff on 6.3.2020. None present for the defendant when the N/M
was heard. However, the reply affidavit is already filed on behalf of the
defendants and that has been considered by me.
3. After the N/M was heard on 6.3.2020 and matter was
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adjourned for orders on 21.3.2020, national lockdown in view of
COVID19 was declared and functioning of the court was restricted.
Now when regular functioning of the court has resumed from
1.12.2020, the N/M is taken up for passing necessary orders.
4. The plaintiff has preferred the present Motion for setting
aside ‘no cross’ order dated 16.9.2019 by which the plaintiff’s right to
crossexamine the defendants’ witness was forfeited/closed. The main
ground in the Motion for setting aside the ‘no cross’ order is that, on
16.9.2019 the Counsel for the plaintiff was suffering from cold and
fever and could not attend the hearing before the court. The plaintiff
was present and had sought oral adjournment but it was opposed by the
Counsel for the defendants and ‘no cross’ order came to be passed
against the plaintiff. In the affidavit in reply, the defendants have
strongly opposed the Motion on the ground that the suit is old one and
is pending since the year 2009. It is partheard. The defendant no.1 has
filed evidence affidavit on 7.9.2017 along with documents and the
documents were exhibited on 23.3.2018. Thereafter, the matter was
adjourned for crossexamination of the defendant by the Counsel for the
plaintiff on various dates as mentioned in para 3 of the reply affidavit.
The order passed by this court is just and proper. No sufficient ground
has been shown by the plaintiff to set aside that order. The N/M is not
supported by medical certificate regarding illness of the plaintiff’s
advocate on 16.9.2019. Hence the Motion deserves to be dismissed.
5. After considering the contentions of both sides and hearing
of Ld. Counsel for the plaintiff, I find that, no doubt, the plaintiff has
delayed the crossexamination of the defendant no.1 on various dates
but on 16.9.2019, when the ‘no cross’ order was passed, Ld.Counsel for
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the plaintiff was suffering from cold and fever and could not attend the
court proceeding. It was personal difficulty of the Counsel, who is also
officer of the court. The defendants have pointed out that the Motion is
not supported by medical certificate regarding illness of the Counsel for
the plaintiff. But, under such circumstances, I am of the view that, same
cannot be insisted upon and the statement of the plaintiff regarding
personal difficulty of the Counsel can be accepted as believable one and
the Motion can be allowed, subject to some reasonable costs. Hence, I
proceed to pass following order :
ORDER
1. Notice of Motion No.3801/2019 is hereby allowed and
made absolute subject to plaintiff depositing costs of
Rs.2000/ in the office of DLSA, Mumbai within one
month from today.
2. If the above direction is complied by the plaintiff, the ‘no
cross’ order passed by this court on 16.9.2019 shall
stands set aside and the Counsel for the plaintiff shall be
allowed to crossexamine the defendant no.1.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 2.12.2020 Gr. Bombay (C.R. 03)
Dictated on : 2.12.2020
Transcribed on : 3.12.2020
Signed by HHJ on : 3.12.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :4.12.2020
TIME: 2.20 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R.03)
Date of pronouncement of Judgment/ Order 2.12.2020
Judgment/ order signed by P.O on 3.12.2020
Judgment/ order uploaded on 4.12.2020
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