Final Order 1

Order Details: Notice of Motion
Pdf Text: Advocate Mr. Joshi for Plaintiff present and filed reply to Notice of Motion no.4145/19, t.o.r.
Advocate Mr. Thorat for Defendant no.1 present Advocate Mr. Rishit for Defendant no.4A present
and filed rejoinder to NM reply filed by Plaintiff, t.o.r. ORDER ON NM NO.4145/19 This Notice of
Motion is taken out for setting aside order dated 16/10/2019 by which the affidavit in lieu of
examination in chief of DW2 is discarded by the court. Heard advocate for Defendant no.4A,
Plaintiffs advocate and also heard submissions made on behalf of Defendant no.1. It is submitted by
advocate for Defendant no.4A there was some misunderstanding therefore some pleadings about
appearance of DW2 in the court are mentioned in the affidavit filed in support of Notice of Motion.
It is submitted that fair opportunity should be given to DW2 to contest the matter and such an
opportunity can be given by imposing some costs upon DW2. Advocate for Defendant no.4A
submitted that today itself he will file pursis on behalf of Defendant no.4A for adopting the Written
Statement filed by deceased original Defendant no.4 so that the affidavit of examination in chief can
be considered for the disposal of the suit. Plaintiffs advocate has submitted that some incorrect
statements about the presence of DW2 in the court on 16/10/2019 are made in the affidavit filed in
support of Notice of Motion. Further it is pointed out that the Written Statement of Defendant no.4A
is not on record as said Defendant neither has filed Written Statement nor adopted Written
Statement of Defendant no.4 by filing pursis to that effect. Hence, according to Plaintiffs advocate
Notice of Motion deserves to be dismissed. I have given serious consideration to the submissions.
As Defendant no.4A has undertaken to file the pursis for adopting Written Statement of original
deceased Defendant no.4 I find that opportunity can be given to Defendant no.4A to adduce the
evidence for rebuttal of Plaintiff&amp#039s case. Further, it is always better for Plaintiff to
have the contesting decree else there is always a possibility that appellate court may remand back
the matter on the ground that Defendant no.4A could not get the opportunity to adduce the evidence.
In such circumstances, I find that Notice of Motion can be made absolute however while allowing
the Notice of Motion could will have to be serious about awarding cost to Defendant no.4A because
order dated 16/10/2019 was passed by the Court considering the fact that this suit is pending since
1990 and thus already 30 years have passed and in such circumstances if Defendant no.4a with dealt
with easily the bad message may go and the parties who are intending to delay the matter in other
suits also will not take care for disposal of old suits which are pending for more than 10,20 and 30
or so many years, hence I proceed to pass following order - ORDER 1. Notice of Motion no.4145 of
2019 is made absolute, subject to payment of cost of Rs.3000/- to Plaintiff. It is made clear that, the
cost is awarded not as punishment but as the reminder so that DW2 will take care in future. 2. The
order of discarding affidavit in lieu of examination in chief of DW2 stands set aside subject to the
payment of cost. 3. DW2 is directed to take care for offering herself for cross-examination. Case is
adjourned to 22/01/2020 for compliance/cross-examination of DW-2. L.O. Advocate for Defendant
no.4A present and filed pursis contending that Defendant no.4A is adopting Written Statement filed
by original deceased Defendant no.4 on 28/06/1993, t.o.r. Copy be served upon
Plaintiff&amp#039s advocate.
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