Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 4226/2019 (SCS 3197/13)
MHCC010115812019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No. 4226 OF 2019
IN
LONG CAUSE SUIT No. 3197 OF 2013
1. Mr. Arvind Kumar Kanji Thakkar ]
and others. ].. Plaintiffs.
Versus
1. The Municipal Corporation of ]
Greater Mumbai and others ].. Defendants
Appearance :
None for plaintiffs.
Mrs. Chavan, Advocate for defendant Nos.1 to 4/M.C.G.M.
CORAM : HIS HONOUR JUDGE,
SHRI S.H. SALUNKHE,
COURT ROOM NO.4.
DATED : 3rd FEBRUARY 2023.
O R D E R
Defendant/Corporation has taken out this Notice of Motion
for setting aside ‘No Cross Order’ dated 17.01.2019.
2) Defendant/Corporation stated that on 17.01.2019 L.C. Suit
No.3197 of 2013 was kept for crossexamination of PW2. However, the
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Counsel of the defendant/Corporation remained absent and even did
not inform the defendant/Corporation. Therefore, order of no cross
examination of PW2 has been passed. Thereafter, the said Counsel
returned the brief and subsequently, the matter was assigned to Anita
Murgude. There is delay of 258 days in taking out Notice of Motion for
setting aside the order of No Cross. It is necessary to set aside the ‘No
Cross’ Order and no prejudice will be caused to the plaintiffs.
3) Inspite of sufficient time and opportunity given to the
plaintiffs, they did not file reply to the Notice of Motion. Hence, Notice
of Motion heard without reply.
4) Heard learned advocates for the defendants. None present
for the plaintiffs.
5) Perused Affidavit in support of Notice of Motion and
Roznama. It appears that the evidence of PW1 has been filed, as
defendant/Corporation has not crossexamined and then matter was
kept for crossexamination of PW2. Even on 17.01.2019, the Counsel
for the defendant/Corporation remained absent. Hence, No Cross Order
came to be passed. It is the contention of the defendant/Corporation
that the Counsel who representing to the defendant/Corporation
remained absent and even did not inform the defendant/Corporation
and thereafter he returned the brief. The plaintiffs have not filed reply
to the Notice of Motion.
6) It is well settled that the procedural law is not to be a
tyrant, but a servant, not an obstruction, but aid to justice. Procedural
provisions are the handmaid and not the mistress a lubricant, not a
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resistant in the administration of the justice. In an adversarial system,
no party should ordinarily be denied the opportunity of participating in
the process of justice dispensation, unless compelled by express and
specific language of the statute, the provision of C.P.C. or any other
procedural enactment ought to be construed in manner which would
leave the Court helpless to meet extra ordinary situations in the ends of
justice.
7) Considering the facts of the case and settled legal position,
it would be just and proper to give fair opportunity to the defendant/
Corporation to crossexamine the witness of the plaintiffs. Therefore, in
view of above made discussion and facts of the case the notice of
motion deserves to be allowed. Hence, I pass following order:
O R D E R
1. Notice of Motion No.3153 of 2021 is allowed in terms of
prayer clause (a) and (b).
2. Notice of Motion No.3153 of 2021 stands disposed off
accordingly.
( S. H. SALUNKHE )
Judge City Civil Court,
Court Room No.4,
Date : 03/02/2023. Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
04/02/2023 11.25 a.m. MRS. SUPRIYA S. PAWAR
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 03/02/2023
ORDER Typed on 03/02/2023
ORDER signed by P.O. on 03/02/2023
ORDER uploaded on 04/02/2023
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