Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3811-19 in Suit No. 2180-12
CNR NO.MHCC0101028319
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3811 OF 2019
IN
L.C. SUIT NO. 2180 OF 2012
Sanjay Anand Gavte & Anr. …...Plaintiffs
Versus
The Municipal Corporation of Gr. Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 27th November, 2019.
Appearance:
Ld. Adv. Mrs. Vidya Shetty for plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
Defendant No. 3 in person.
ORDER
1. The plaintiff by this notice of motion seeks to set aside the order
dated 27.10.2019, closing the crossexamination of the plaintiff of
witness for the defendant corporation.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation and defendant No. 3 in person.
3. It is contended that the Advocate for the plaintiff could not
remain present as had backache and therefore the orders of no cross in
respect of witness for corporation was passed against plaintiff.
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2 NM 3811-19 in Suit No. 2180-12
4. It is contended by the defendant corporation that the tactics is
only to delay the suit. No just and proper ground for setting aside the
order.
5. The defendant No. 3 had opposed the notice of motion by filing
say. It is contended that no just ground is made to set aside. He had
relied upon following judgments:
1. in case of Prafulla S/o Narhar Wagh & Anr. V/s. Govnd S/o
Narayan Pimpalkar 2017(5) Mh.L.J.
2. in case of Noor Mohammed Vs. Jethanand 7 Anr. AIR 2013
Supreme Court 1217
6. Admittedly, because of the absence of the Advocate for the
plaintiff, the crossexamination of the witness for the defendant
corporation by the plaintiff is closed. By this notice of motion the
plaintiff seeks to set aside the order of no cross.
It is submitted that due to the health problem, the Advocate for
the plaintiff could not attend the Court. The ground raised by the
plaintiff for setting aside the order cannot be said to be unjust.
7. The defendants have opposed the notice of motion. It is trite of
law that the matter needs to be decided on merits and not on
technicality. A fair opportunity needs to be given to the plaintiff to
crossexamine the witness for the defendant corporation. The Court has
strike balance in respect of the interest of the plaintiff as well as
defendant. The interest of the plaintiff can be secure by awarding the
appropriate cost. The order of no crossexamination needs to be set
aside. The plaintiff needs to be given a fair opportunity to cross
examination the witness for the defendant corporation.
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In the result, following order is passed.
ORDER
1. The Notice of Motion No. 3811/2011 is allowed.
2. The order dated 27.10.2019 of no cross of the witness for the
defendant by the plaintiff is set aside.
3. The plaintiff is permitted to cross examine the witness of the
defendant.
4. It is made clear that the adjournment would not be granted on any
pretext on the next date.
5. The plaintiff is directed to pay the cost of Rs. 750/ each, to the
defendant Nos. 1 and 3.
6. The Notice of Motion No. 3811/2019 stands disposed off.
(Sanjay N. Yadav)
Judge,
Date : 27.11.2019 City Civil Court, Mumbai.
Dictated on : 27.11.2019
Transcribed on : 28.11.2019
Signed by HHJ on : 29.11.2019
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4 NM 3811-19 in Suit No. 2180-12
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.11.2019 at 5.33 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
27.11.2019
JUDGMENT/ORDER signed by
P.O. on
29.11.2019
JUDGMENT/ORDER uploaded
on
29.11.2019
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