Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 3839 of 2019
IN
L.C.SUIT NO. 2891 OF 2011
(CNR No.MHCC010104562019)
Amit Hiralal Pal & Ors. )...Applicants
In the matter of
Mr.Harkesh Motilal Pal )...Plaintiff
V/s.
Municipal Corporation for Greater )
Mumbai & Ors. )...Defendants
Appearance:
Adv. Mr. V.S.Bhadakamkar for plaintiff.
Adv. Ms.Vyavahare for defendant/MMC.
Adv.Mr.Dinesh Yadav i/b. Adv. Mr. U.V.Singh for defendant nos. 3(b),
3(c) and 3(e).
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 7th, NOVEMBER 2019.
(C.R.No.06)
This notice of motion is taken out by the legal heirs of the
deceased defendant no.3 for setting aside the order of closing evidence
of the defendants dated 19/09/2019 and permitting to them to file their
written statement. This notice of motion resisted on behalf of the
plaintiff by filing their reply. Read the notice of motion, reply of the
plaintiff thereon. Heard both the learned counsels on behalf of both the
sides at length. Perused the record.
2. After scrutiny of the pleadings of both the parties, hearing of the
-- 1 of 4 --
2
arguments advanced on behalf of both the sides at length, it is the
contention of the legal heirs no. 3(b), 3(c) and 3(e) of the deceased
defendant no.3 that defendant no.3 has been died during pending of
this suit. The plaintiff has taken out the heirs of the deceased defendant
no.3 is on record. Thereafter, on 19/09/2019, these defendants i.e.
legal heirs of deceased defendant no.3 were absent and therefore this
court has closed the evidence of defendant no.3 by passing order dated
19/9/2019. These defendants want to file their written statement and
adduce the evidence. Therefore, the order passed dated 19/09/2019 be
set aside and permitted to these legal heirs of the deceased defendant
no.3 to file their written statement.
3. The learned counsel on behalf of the plaintiff has argued that the
plaintiff has closed his evidence. Thereafter, the defendant no.3 was
filed his affidavit evidence and before his cross examination, he was
died. Therefore, the plaintiff has taken out legal heirs of the deceased
defendant no.3 is on record. The Court has given the opportunity to the
legal heirs of the deceased no.3 to adduce the evidence, but these legal
heirs of deceased defendant no.3 remained absent. Therefore, on
19/9/2019, this Court has rightly passed the order and closed the
evidence of the defendant no.3 and the matter was posted for final
arguments.
4. On scrutiny of the record, it appears that the present suit came to
be filed in the year 2011. After framing of issues, the plaintiff was filed
his evidence affidavit. He was fully cross examined on behalf of the
deceased defendant no.3. Thereafter on 14/01/2019, the plaintiff
closed his evidence by filing closing pursis. Thereafter, the defendant
no.3 was filed his evidence affidavit on 07/02/2019. But, before his
-- 2 of 4 --
3
cross examination, the defendant no. 3 is died. The plaintiff has taken
out the legal heirs of deceased defendant no. 3 by moving chamber
summons no.1273/19. Thereafter, the plaintiff was carried out the
amendment as per order dated 29/07/2019 passed in Chamber
summons no.1273/19. Lastly, the matter was fixed for the evidence of
the legal heirs of the deceased defendant no.3 on 19/09/2019. On that
day, none of the legal heirs of deceased defendant no.3 remained
present. Therefore, the evidence of the defendant no.3 closed by
passing order dated 19/09/2019.
5. By way of this notice of motion, the legal heirs of the deceased
defendant no.3 want to allow them to file their written statement. On
scrutiny of the record, it is admitted fact that the defendant no.3 was
filed his written statement. Thereafter, issues were framed, evidence of
the plaintiff was closed and the deceased defendant no. 3 was filed
evidence affidavit. This matter is time bound by the order of Hon'ble
High Court. In such circumstances, the legal heirs of deceased
defendant no.3 are not entitled to file their written statement by setting
aside the order of closing evidence of the defendant no.3 passed on
19/09/2019. Therefore, I have proceed to pass following order.
O R D E R
Notice of motion No. 3839/19 is hereby dismissed.
Date : 07/11/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on :07/11/2019
Transcribed on : 11/11/2019
Signed by HHJ : 11/11/2019
-- 3 of 4 --
4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
11/11/2019 5.00p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
07/11/2019
Judgment/order signed by P.O on 11/11/2019
Judgment/order uploaded on 11/11/2019
-- 4 of 4 --