Final Order 1

Order Details: Other
Pdf Text: 5.12.2019
SU 210/15
@ NM 4133/19
Ex 22
Ex 23
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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.
Judge
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