Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4243-2019 in SU-4726-2007
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.4243 OF 2019
(CNR NO.MHCC01-011623-2019)
IN
SUIT NO.4726 OF 2007.
(CNR NO.MHCC01-010848-2006)
Abhay Jayantilal Shah }...PLAINTIFF.
Versus
Ketan Jayantilal Shah and Ors. }...DEFENDANTS.
------------------------------------------------------------------------------------------------
Shri.Patel, learned advocate for the plaintiff.
None present for defendants.
------------------------------------------------------------------------------------------------
CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.No.62)
-----------------------------------------------------------------------------------------
O R A L O R D E R
(Delivered on 22/09/2021)
1. This Notice of Motion, is taken out by the plaintiff for
claiming following reliefs.
a. that the delay if any in filing present Notice of
Motion be condoned.
b. that this Hon’ble Court be pleased to set aside the
order dated 27/03/2018 passed in the Suit closing of the
cross examination by the defendants and allow the plaintiff
to prove the documents as per the law.
2. Read the affidavit filed in support of the Notice of Motion.
Despite granting several opportunities, defendants failed to file reply
hence, as per order dated 02/09/2021, notice of motion proceeded
further without reply of defendants. Heard learned Shri.Patel advocate
for the plaintiff. Nobody appeared for the defendants to advance
argument despite keeping back the matter till 4.25 p.m. hence, Notice
of Motion is taken up for consideration on merits.
3. Perusal of the record shows that plaintiff has filed affidavit
-- 1 of 3 --
2 NM 4243-2019 in SU-4726-2007
in lieu of examination-in-chief of PW-1 at Exh.3 alongwith the
compilation of documents at Exh.4 on 30/11/2017. Affidavit of PW-1 is
read and recorded on 21/12/2017. Thereafter, order of no cross of
PW-1 came to be passed on 27/03/2018 and matter was adjourned for
further evidence of plaintiff. Having gone through the record, I found
substance in the argument of learned advocate for plaintiff that matter
was never kept for deciding admissibility of documents and the order of
no cross-examination of PW-1 came to be passed without considering
the admissibility of documents. By taking out this notice of motion,
plaintiff has prayed to set aside the order of no cross-examination
passed on 27/03/2018 by allowing plaintiff to prove the documents as
per the law. If the order of no cross-examination is set aside, it will not
cause any prejudice to the defendants. On the other hand, after
considering the admissibility of documents, defendants will get one
more opportunity to take cross-examination of PW-1. Having regards to
it, for giving fair opportunity to the plaintiff, this court is of the opinion
that it is necessary to accept prayers made in terms of prayer clause (a)
and (b) of this Notice of Motion. Thus, an order.
O R D E R
Notice of Motion No.4243 of 2019 is allowed in terms of its
prayer clauses(a) and (b).
Date : 22/09/2021. (P.P.RAJVAIDYA)
Dictated on : 22/09/2021. Judge, C.R.No.62,
Checked on : 22/09/2021. City Civil Court,
Signed on : 22/09/2021. Mumbai.
-- 2 of 3 --
3 NM 4243-2019 in SU-4726-2007
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
22/09/2021 at 5.46 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 22/09/2021
Order signed by P.O. on 22/09/2021
Order uploaded on 22/09/2021
-- 3 of 3 --