Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4653/19(Suit 3842/13)
MHCC010127602019
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 4653/2019
IN
S.C. SUIT NO.3842/2013
1. Mr.Balkrishna Dhondu Shetye
2. Mr.Ramesh Salappa Gope
3. Mr.Sudarshan Salappa Gope
4. Mrs. Sumati Anant Shinde
5. Mr. Manohar Mangilal Surya
6. Mrs. Gauri Sunil Shetye
7. Mr. Sharad Sunil Shetye
8. Mr. Surendra Vithal Surve. ..Plaintiffs
V/s.
Deep Co-op. Housing Soc. Ltd. ..Defendant
Appearance:-
Adv. Mr. S.S. Redekar for plaintiffs.
Adv. Ms. Sheetal Bile for defendant.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 16.3.2020.
ORAL ORDER
1. This Motion is taken out by the defendant for setting aside
order dated 17.9.2018 to proceed without cross-examination of the
plaintiffs’ witness and to permit his cross-examination by the defendant.
The Motion is supported by an affidavit of Mr. Suhas Salvi, Chairman of
the defendant Housing Society. The plaintiffs have opposed the Motion
by filing reply affidavit of Surendra Surve (plaintiff no.8) on behalf of
the plaintiffs. I have gone through the same.
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2. I have heard Ld. Counsels for both sides.
3. It is submitted on behalf of the defendant that, as per order
dated 17.9.2018, the court had proceeded without cross-examination of
the plaintiffs’ witness as Ld Counsel for the defendant failed to turn up
before the court for cross-examination of the plaintiffs’ witness. It is
submitted that the defendant is a Housing Society and since advocate,
who was engaged to conduct the case, was not discharging his duty
properly, the defendant has changed the advocate and has engaged new
advocate. Due to the lapses on the part of advocate of the defendant
Society should not suffer and it should not be deprived of its right to
cross-examine the plaintiffs’ witness. Considering the above legal
position, it is necessary, in the interest of justice, to allow the present
Motion.
4. Ld Counsel for the plaintiffs has strongly opposed the
Motion and submitted that the present Motion is barred by time and no
satisfactory explanation is given for the delay by the defendant. The
defendant is a Housing Society and there are number of office bearers
who can attend the court proceedings, but the defendant and its
representatives have been negligent in prosecuting their case. The
alleged lapse on the part of the advocate of the defendant cannot be a
valid ground to allow the present Motion. The present Motion is not
filed bonafidely by the defendant. It suffers from delay and latches on
the part of the defendant, and no equitable relief can be granted as
prayed in the Motion. Hence, the Motion deserves to be dismissed.
5. After considering rival contentions on behalf of both sides, I
find that the order to proceed without cross-examination of the
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plaintiffs’ witness was passed by this court on 17.9.2018 and present
Motion is taken out by the defendant on 22.11.2019 and registered on
6.12.2019, after considerable delay. The defendant is a Society and was
represented before the court through Counsel but it appears that the
Counsel, who was conducting the proceedings, had not communicated
the progress of the case to the defendant Society timely and in a proper
manner. Therefore, the matter has gone unattended. Considering the
facts and circumstances mentioned in the supporting affidavit, I am of
the opinion that, if the present Motion is allowed subject to reasonable
costs, it will serve the purpose and shall meet the ends of justice. Hence,
I proceed to pass following order :-
ORDER
1. Notice of Motion No.4653/2019 is hereby allowed and and
made absolute subject to defendant paying costs of Rs.2,000/-
to the plaintiffs (collectively)/ depositing in the court, as a
condition precedent, within four weeks from today.
2. If the above direction is complied with by the defendant
within time, then the order dated 17.9.2018 to proceed
without cross-examination of the plaintiffs’ witness shall
stands set aside by condoning the delay and the defendant
shall be permitted to cross-examine the plaintiffs’ witness.
Notice of Motion is disposed of accordingly.
(V.V. Vidwans)
Date: 16.3.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 16.3.2020
Transcribed on : 16.3.2020
Draft given on 16.3.2020
Signed by HHJ on : 17.3.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 17.3.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 16.3.2020
Judgment/ order signed by P.O on 17.3.2020
Judgment/ order uploaded on 17.3.2020
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