Final Order 3

Order Details: Notice of Motion
Pdf Text: NM No.3810/2019 ..1.. Suit No.2297/2014
CNR No. MHCC01-010282-2019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3810 OF 2019
IN
SUIT NO.2297 OF 2014
Nitesh Prataprai Kothari. .. Plaintiff
Versus
Mr. Narendra Prakash Mathur. .. Defendant.
Advocates
Anil Lad for the plaintiff.
S.S. Redekar for the defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 29th February, 2020
ORAL ORDER
Present notice of motion is taken out on behalf of the plaintiff
to examine his witness Kashi Prasad Tiwari first under order 18 Rule 3-
A of the C.P.C. His contention is that since possession of suit premises
was handed over to the witness Kashi Prasad Tiwari, he has well
conversant with facts of the case.
2. Advocate for defendant filed his reply and opposed notice of
motion on the ground that plaintiff has not obtained leave of the Court
for examining Kashi Prasad Tiwari before his examination. Hence,
notice of motion is not tenable.
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3. Perused notice of motion, affidavit in support of it, reply to
notice of motion and proceedings of the case. Heard advocate for both
parties.
4. As per the plaintiff possession of suit premises was handed over
to his witness Kashi Prasad Tiwari. Hence, his evidence needs to be
recorded first before examination of the plaintiff. Defendant denied that
possession of the suit premises was handed over to the plaintiff's
witness Kashi Prasad Tiwari. Hence whether possession of suit premises
was handed over to Kashi Prasad Tiwari or not can be concluded only
after recording his evidence.
5. Advocate for the plaintiff relied on judgment of the Hon’ble High
Court in
Sanjay Narayanrao Barde and Ors. vs. Vimal Keshaorao Bairam
and Ors. (AIR 2000 Bom 384) in support of his contention. It is held
that
“rule 3-A of Order 18 of the C.P.C. is directory in nature and that
the only mandatory provision it incorporates is to the extent of
obtaining permission of the Court. The normal rule laid down is that
the party wanting to examine himself should examine first before any
witness is examined. This rule can be deviated only with the permission
of the Court. Such permission of the Court, it is desirable, should be
obtained before any witness is examined, but such is not the mandate.
Such permission can be obtained even at a later stage.
6. Main objection of defendant is that the plaintiff has not sought
previous permission of this Court for examining Kashi Prasad Tiwari
first before examination of the plaintiff. Only caution is that the party
wanting to deviate from the general rule should not misuse such right
for filling up the lacuna. Advocate for the plaintiff submitted that he
would not misuse the provision and fill up the lacuna. In view of above
facts, circumstances and observation of the Hon’ble Bombay High Court
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in above citation, notice of motion can be made absolute in terms of
prayer clause (a). In the result, following order.
ORDER
1. Notice of Motion No.3810 of 2019 is allowed and made absolute
in terms of prayer clause (a).
2. Accordingly, notice of motion is disposed of.
(Sunil T. Soor)
Judge
Date : 29.02.2020 Gr. Mumbai.
Typed on : 29.02.2020
HHJ signed on : 29.02.2020
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NM No.3810/2019 ..4.. Suit No.2297/2014
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.02.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
29.02.2020
JUDGMENT/ORDER signed by P.O.
on
29.02.2020
JUDGMENT/ORDER uploaded on 29.02.2020
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