Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.4439 OF 2019
IN
SUIT NO.7575 OF 1981
1. Babulal Indrasen Jaiswal at Bombay
1.(a) Gita Satish Jaiswal and others ..Plaintiffs
Versus
1. Hemchand Harbakshlal
Khandelwal and anr ..Defendants
Appearance:-
Ld. advocate Shrutika Lakhan for the plaintiffs
Ld. advocate Kalpesh Nansi for the defendants
CORAM: HIS HONOUR JUDGE
SHRI SHANKAR G.BORLEPWAR
(CR NO.20)
DATE: 25/02/2020
ORAL ORDER
1. Defendant no.1 took out this Notice of Motion to
set aside ‘no cross examination’ order dated 04th
November, 2019 and to permit him to cross
examine the plaintiff’s witness.
2. Perused Notice of Motion, affidavit in support of
Notice of Motion and reply.
3. Heard both the sides.
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4. Following points arise for my determination. I
record my findings thereof for the reasons
mentioned below:
Sr.
No.
Points Findings
1. Whether ‘no cross
examination’ order dated
04/11/2019 can be set aside?
In the affirmative.
2. Whether defendant no.1 can
be permitted to cross examine
plaintiff’s witness?
In the affirmative
3. What order? Notice of motion is
allowed.
REASONS
5. In brief, it is the contention of defendant no.1
that the first date of cross examination after
exhibiting documents was 04/11/2019. The
defendant no.1 is senior citizen aged 78 years.
The absence of defendant no.1 on 04/11/2019
was not intentional. Due to ill health of
defendant no.1, he has to stay at home. Due to
his ill health, he cannot go out of house
frequently, therefore the said order be set aside.
6. In brief, it is the contention of defendant no.2
that sufficient grounds are not made out to set
aside the said order. All the adverse contentions
are denied. As per order 17 of Civil Procedure
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Code, 1908 Court has to continue the proceedings
for recording evidence on day today basis.
Hence, Notice of Motion be dismissed.
7. Perused the roznama dated 04/11/2019. On that
date, none was present for the defendants. The
advocate Gayatri Sharma for defendant no.1
appeared at 12.10 p.m. It is mentioned in the
roznama that defendant no.1 is at liberty to take
necessary steps.
8. Perused Order 9 Rule 3 of the Code of Civil
Procedure. As per the said Rule where neither
party appears when the suit is called on for
hearing, the Court may make an order that the
suit be dismissed.
9. Perused Order 9 Rule 4 of the Code of Civil
Procedure. As per the said Rule where a suit is
dismissed under Rule 2 or Rule 3, the plaintiff
may (subject to the law of limitation) bring a
fresh suit, or he may apply for an order to set
the dismissal aside, and if he satisfies the Court
that there was sufficient cause or for his non-
appearance, as the case may be, the Court shall
make an order setting aside the dismissal and
shall appoint a day for proceeding with the suit.
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10. Considering the reasons for non appearance
on 04/11/2019, I am of the opinion to decide the
suit on merits, the said order can be set aside.
Hence, I record my findings on point nos.1 and 2
in the affirmative and point no.3 Notice of
Motion is allowed as per final order. Hence,
following order:-
ORDER
1. Notice of Motion No.4439 of 2019 is
allowed.
2. No cross-examination order dated
04/11/2019 of plaintiff’s witness is set
aside.
3. Defendant no.1 is permitted to cross-
examine plaintiff’s witness.
4. Costs in cause.
25/02/2020 SHANKAR G.BORLEPWAR
Judge,(CR No.20)
City Civil Court,Gr.Mumbai
Dictated on: 25/02/2020
Typed on: 26/02/2020
Signed on: 09/03/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
11/03/2020 at 4.00 pm.
MRS.T.C.KAMBLE
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Name of the Judge SHANKAR G.BORLEPWAR, CR
NO.20
Date of Pronouncement of
judgment/order
25/02/2020
Judgment and order signed by P.O. 09/03/2020
Judgment/order uploaded on 11/03/2020
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