Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 4173-19 in S.C. Suit no. 7086-04
1 Date :11.12.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4173 OF 2019
IN
S.C. SUIT NO. 7086 OF 2004
(CNR NO.MHCC010114412019 )
Shree Enterprises .. Plaintiffs
Versus
Kala Yuvak Mitra Mandal
Charitable Trust & Ors. .. Defendants
Appearances :
Ld. Adv.Rajeshwar for plaintiff.
Ld. Adv.J.V.Parmar a/w O.S.Kamwal for defendant no.1,2,4
and 5.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 11.12.2019
ORDER
1. Defendant no. 1, 2, 4 and 5 have filed instant Notice of
Motion for setting aside order dated 09.10.2019 whereby their
evidence was closed.
2. It is contended by the defendants that parties therein are
litigating in respect of same properties by way of two suits. The
defendants filed Suit No. 6030 of 2005 wherein the present
plaintiffs are the defendants. In both the matters, the plaintiff’s
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NM 4173-19 in S.C. Suit no. 7086-04
2 Date :11.12.2019
witnesses have filed their evidence and have been crossexamined.
Although both the matters were on the board and are connected
matters, but evidence in both the matters are different.
3. It is contended by the defendants that they have filed
evidence alongwith list of documents in Suit No. 6030 of 2005, the
same documents are relied by them in present Suit No. 7086 of
2004. It is submitted by the defendants that all the documents in
Suit No. 6030 of 2005 are not marked as Exhibit and certain
documents filed in the said suit are kept for identification purpose
due to which the defendant no. 2 herein had filed application for
withdrawal of original documents from Suit No. 6030 of 2005.
4. On 09.10.2019, the Suit No. 6030 of 2005 was fixed for
filing reply by the defendants therein. However, no reply was
filed. Therefore, this Court rejected the application below Exh.23
and posted the matter on 13.11.2019.
5. It is contended by the defendants that application for
withdrawal of the documents in Suit No. 6030 of 2005 was
decided on the same day i.e. 09.10.2019 and Roznama of present
suit of same same day i.e. 09.10.2019 stated that the defendants
failed to file Evidence of Affidavit. Hence, side of the defendants
are closed.
6. It is further contended by the defendants that on 09.10.2019,
his advocate has pointed out the aforesaid fact that certain
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NM 4173-19 in S.C. Suit no. 7086-04
3 Date :11.12.2019
documents in Suit No. 6030 of 2005 are not exhibited and are kept
for identification. Though same are original documents for which
only remedy left with the defendants to file application for
withdrawal of original documents. The defendants have obtained
certified copies of the documents which were exhibited in Suit No.
6030 of 2005. Due to the impugned order substantial rights of
defendants are affected. The defendants be granted an
opportunity, have never intended to prolonged matter. Due to the
pendency of application exhibit 23, defendants could not finalized
and prepared list of documents though affidavit of evidence was
prepared by the defendants on 20.06.2018.
7. It is contended by the defendants that today they are ready
with the Affidavit of Evidence alongwith the documents as well as
they may be permitted to file the same and impugned order be
quashed and set aside.
8. The Notice of Motion is opposed by the plaintiff. Heard both
the sides. This Court vide, letter dated 09.10.2019 closed the side
of defendants because they are not ready with the Affidavit of
Evidence alongwith the list of documents. However, today the
defendants are present with Affidavit of Evidence alongwith the
list of documents. Therefore, in the interest of justice, in my view,
the impugned order needs to be recalled. The inconveniency
caused to the plaintiff can be compensated by awarding reasonable
cost of Rs. 5000/ to be payable by the defendants to the plaintiff.
Thus, I proceed to pass the following order :
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NM 4173-19 in S.C. Suit no. 7086-04
4 Date :11.12.2019
ORDER
1. Notice of Motion No.4173 of 2019 is made absolute in terms
of prayer clause (a) subject to payment cost of Rs.5,000/ to
the plaintiff.
2. Plaintiff to allow to file evidence on affidavit alongwith the
documents.
3. Notice of Motion No.4173 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 11.12.2019 Greater Bombay.
Dictated on : 12.12.2019
Typed on : 12.12.2019
Draft Submitted on : 12.12.2019
Checked on : 13.12.2019
Signed on : 13.12.2019
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NM 4173-19 in S.C. Suit no. 7086-04
5 Date :11.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
16/12/2019 at 12.25 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
11/12/2019
JUDGMENT/ORDER signed by P.O.
on
13/12/2019
JUDGMENT/ORDER uploaded on 16/12/2019
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