Date: 25-11-2019
Business: Plaintiff present.
Adv. Paranjpe for defendant No.1 present.
Plaintiff sought time to file registered notice of motion on record - granted.
Advocate for defendant no.1 sought time to file reply to said notice of motion granted.
Adjourned for compliance and reply to 03.12.2019
Next Purpose: REPLY
Next Hearing Date: 03-12-2019
Date: 03-12-2019
Business: Adv. Shettey for plaintiff present.
Adv. Mhatre H/F Adv. Paranjpe for defendant no 1 present.
Plaintiff present.
Defendant no 2 present.
Adv. for filed registered NM no 4133/19. t.o.r.
He also filed affidavit of service.t.o.r.
Defendant filed say on NM
KB
Heard argument of both side.
As court is busy in hearing other matter,
Adjourned for order to 5.12.2019.
Next Purpose: ORDER
Next Hearing Date: 05-12-2019
Date: 05-12-2019
Business: Plaintiff present.
Defendant no 2 present.
Adv. Sachin Shettey for plaintiff present.
Adv. C.K Mhatre H/F adv. Paranjape for defendant no 1 present.
Order below NM No.4133/19.
Perused Notice of motion, affidavit in support of it, reply of defendant nos.1 and 2 and Roznamas of present proceeding.
Heard respective counsel for parties.
Notice of motion is taken out by the plaintiff to set aside order dated 29.07.2019 and to allow him to adduce evidence and file examination-in-chief on affidavit. It is the contention of plaintiff that present matter was transferred from Court of Principal Judge to C.R.No.9 and then to this Court. P.w.1 is already cross examined by defendants. Thereafter, plaintiff prepared his affidavit of evidence but could not file the same before the Court. On 24.06.2019 plaintiff could not appear before the Court as matter was transferred to this Court and he was not aware about the date. He was also not aware about next date of hearing and conditional order passed in the matter. Because of which neither he nor his Advocate could attend the Court on next date of hearing i.e. 29.07.2019. Consequently, this Court was pleased to close the evidence of plaintiff and matter was posted for evidence of defendant no.1. On 16.09.2019 when plaintiff and his Advocate attended the Court, it came to their knowledge about passing of order dtd.29.07.2019. In above circumstances, plaintiff has taken out present notice of motion for setting aside said order and to permit him to adduce evidence by filing affidavit in lieu of examination-in-chief.
Defendant no.1 opposed Notice of motion and leave it to discretion of this Court in relation to order on present Notice of motion. Defendant no.2 has no objection to allow present Notice of motion.
It is not in dispute that present matter has been transferred from various Courts before it has been transferred to this Court. It is also true that P.w.1 Sundarabai Redekar has been cross examined on 08.04.2019 before C.R.No.9 and matter was adjourned for recording evidence to 24.06.2019. On that day matter is transferred to this Court but plaintiff and his Advocate were absent. Therefore, in the interest of justice matter was adjourned for evidence of witness of plaintiff in default for order to 29.07.2019. Again on that date, plaintiff and his Advocate were absent. Consequently, side of plaintiff was closed. It is not clear whether plaintiff was aware about the transfer of present matter from C.R.No.9 to C.R.No.2. The reason assigned in my view is sufficient to set aside impugned order. Considering the facts of matter and in the interest of justice and fair trial, I am inclined to allow plaintiff to adduce further evidence and to file his affidavit of evidence by setting aside order dated 29.07.2019. However, certain costs is required to be imposed upon the plaintiff. Hence, pass following order.
ORDER
1. Notice of motion No.4133/19 is allowed and made absolute in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.1,000/-(Rupees One Thousand Only) to defendant no.1 within period of two weeks from date of order. Plaintiff is at liberty to deposit costs payable to the defendant no.1 in Court.
2. On payment of costs by the plaintiff, he has to file his affidavit of evidence on record.
3. Accordingly, Notice of Motion is disposed of.
Costs paid by plaintiff to adv. C.K. Mhatre who accepted it on behalf of defendant no 1.
Ex 22 Plaintiff filed affidavit of evidence of PW2 Mr. Vijay Redekar t.o.r.
Ex 23 He also filed compilation of documents t.o.r.
Copy is supplied to defendant no 1
Adj for cross examination to 07.01.2020.
Nature Of Disposal: ALLOWED
Disposal Date: 05-12-2019