Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3936/2019 ..1.. Suit No.5342/2012
CNR No.MHCC01108892019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3936 OF 2019
IN
SUIT NO.5342 OF 2012
Purnumakumari Dharmendra Jain and Another .. Plaintiffs
Versus
M/s. J. Gala Builders and others .. Defendants
Ms. Tania D'souza, advocate for plaintiffs
Mr. Mohanish Chaudhari, advocate for defendant Nos.1, 3 and 4
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 14th November, 2019
ORAL ORDER
Present notice of motion is taken out by the defendant Nos.1, 3
and 4 making prayer to condone the delay if any caused in filing
present notice of motion and to recall order dated 27.09.2019 relating
to 'no cross' order passed against these defendants.
2. It is the contention of these defendants that on 27.09.2019
advocate for these defendants was in personal difficulty to attend the
matter therefore he requested his colleague to appear in the matter and
informed about non service of complete copy of document at Exh.19
and seek time for cross examination of plaintiff's witness till such copy
is served. However, owing to other court obligations she was held up
and could not manage to appear before this Court. In the aforesaid
circumstances no cross order came to be passed against these
defendants. It is contended that said order was passed due to non
appearance of advocate of these defendants which is resultant of an
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unintentional, inadvertent error on the part of concerned advocate.
These defendants have strong case on merits so opportunity be given to
them to represent their case properly. Accordingly, they made prayer in
above terms.
3. Plaintiffs opposed notice of motion and denied all allegations
contained in notice of motion. It is contended that these defendants are
in habit of protracting the proceedings and filing applications. It is
contended that defendants and their advocate deliberately did not
appear before the court in order to delay the matter. Accordingly,
plaintiffs prayed for dismissal of notice of motion.
4. Perused notice of motion, affidavit in support of it, reply of
plaintiffs and roznamas in the proceeding. Heard respective counsel for
parties.
5. It is not in dispute that on 19.08.2019 certain documents have
been admitted in evidence and marked exhibit and thereafter matter is
posted for cross examination of PW1 Dharmendra Jain to 27.09.2019.
On 27.09.2019, PW1 Dharmendra Jain and plaintiff's advocate were
present in the Court in present matter. But, advocate for defendants was
absent. So also, none was present on behalf of defendants. Accordingly,
no cross order is passed against defendants and matter was adjourned
for evidence of witness of the plaintiffs.
6. Present notice of motion is taken out by these defendants on
15.10.2019 i.e. within 30 days from the date of no cross order. So, it is
within prescribed period of limitation so question of condonation of
delay caused in filing notice of motion does not arise.
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7. From the facts of matter as pointed above it is clear that said
order is passed under Order XVII Rule 2 read with Order IX Rule 6 of
CPC. It is clear from the reasons assigned by these defendants that they
attributed to their advocate's inadvertent error in nonappearance on
the date when matter was posted for cross examination of PW1
Dharmendra Jain. I am of the view that for the error of advocate; party
should not suffer. In the facts of matter it cannot be said that advocate
for these defendant deliberately did not attend the Court on that date.
No malafide can be attributed to the advocate for defendants. In my
view reason assigned by these defendants is sufficient to recall order
dated 27.09.2019. Therefore, I am inclined to set aside said order dated
27.09.2019 in the interest of justice, equity and fair trial subject to
payment of certain costs by these defendants to the plaintiffs. Hence,
pass following order:
ORDER
1. Notice of Motion No.3936 of 2019 is allowed and made absolute
in terms of prayer clause (b) subject to costs of Rs.1000/ (Rupees one
thousand only ) to the plaintiffs within period of one week from the
date of this order.
Defendant Nos.1, 3 and 4 are at liberty to deposit the costs
payable to plaintiffs in the Court.
2. On payment of costs to plaintiffs, these defendants are at liberty
to cross examine PW1 Dharmendra Jain.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 14.11.2019 Gr. Bombay
Typed on : 14.11.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18.11.2019, 3.53pm
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
14.11.2019
JUDGMENT/ORDER signed by P.O.
on
16.11.2019
JUDGMENT/ORDER uploaded on 18.11.2019
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