Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3866/2019 in Suit 4374/2007
NOTICE OF MOTION NO. 3866 OF 2019
IN
SUIT NO. 4374 OF 2007
(HIGH COURT SUIT NO. 76 OF 2007)
Manohar Keshav Kadam …Plaintiff
Versus
Rajeev B. Thakur & Ors. ...Defendants
Appearance:
Adv. Deepak Chitnis for the Plaintiff.
Adv. Sarthak Solaskar for the Defendants.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.66)
DATE : 11.04.2022
ORDER
The Notice of Motion is filed by the plaintiff to set aside the
order dated 10.10.2019. The Notice of Motion is supported by Affidavit
of the plaintiff stating that he was regularly attending the Court after
the evidence Affidavit was filed. The suit was transferred to Court Room
No. 9 from Court Room No. 13. The plaintiff has undergone Heart
Surgery in the year 2002. The suit was adjourned from time to time. He
was not aware that the suit is transferred to Court Room No. 9 at
ground floor. He was sitting in the 2nd floor. When he reached the
ground floor at about 11.30 a.m., I was inquired about the Advocate.
Since my Advocate could not be contacted, I was late and was not
aware about their whereabouts. The Advocate appeared and requested
the Court to set aside the order of my closing evidence. The Hon’ble
Court directed my Advocate to take out appropriate proceedings. The
plaintiff has good chance of succeeding the case and prayed to set aside
the order of closing evidence. Hence, the Notice of Motion.
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2. The defendant filed reply through Affidavit of Rajiv B.
Thakoor, the defendant no. 1 and denied the contents of the Notice of
Motion in toto. The defendant stated that the bypass surgery was done
by the plaintiff in the year 2002. The plaintiff did not mention any ill
health after 2002. The plaintiff was not appearing before the Court in
time. He was not attending the Court regularly. Hence, prayed to reject
the Notice of Motion.
3. Heard Advocate Mr. Deepak Chitnis for the Plaintiff and
Advocate Mr. Sarthak Solaskar for the Defendants. Perused the contents
of the Notice of Motion and reply supported by Affidavit. I have gone
through the roznama.
4. The evidence of the plaintiff was closed on 10.10.2019, as
plaintiff remained absent, though the direction was given to the plaintiff
to remain present. The evidence of the plaintiff was partly recorded.
The plaintiff's right to adduce further evidence was forfeited and it was
further ordered that the suit will be decided considering the evidence
on record to the extent of plaintiff’s cross examination, which is already
recorded. Later on, the plaintiff was present with his Advocate and an
application was filed to set aside the order of forfeiture of plaintiff’s
evidence. My predecessor passed an order directing the plaintiff to take
out the Notice of Motion for prayers claimed in this application.
5. The above record shows that when the matter was called,
the plaintiff was absent, but later on he appeared before the Court and
filed an application to set aside the order of forfeiture of his right to
adduce evidence. Therefore, the affidavit on oath of the plaintiff that he
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was present in the Court, but was not aware that the Court is shifted
from the 2nd floor is to be accepted. The substantial part of the cross
examination is recorded. The plaintiff needs to be given an opportunity
to adduce the evidence. No prejudice will cause to the defendant. He
can be compensated with costs. Considering the above fact, I hold that
the order of forfeiture of evidence of the plaintiff needs to be set aside.
Hence, pass following order:
ORDER
1. The Notice of Motion is allowed on payment of costs
of Rs.1000/ (Rs. One Thousand Only) to the
defendant.
2. The order dated 10.10.2019 is set aside and the
plaintiff to remain present before the Court at 11.00
a.m. for further cross examination.
3. Accordingly, the Notice of Motion is disposed of.
(SMT. S.S.NAGUR)
Judge
Dt.: 11/04/2022 City Civil Court,
Gr. Mumbai
Pronounced on : 11.04.2022
Dictated on : 11.04.2022
Typed on : 11.04.2022
Checked & Signed on : 11.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
12/04/2022 1.30 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.66)
Date of Pronouncement of
Judgment/Order.
11/04/2022
Judgment/order signed by P.O on 11/04/2022
Judgment/order uploaded on 12/04/2022
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