Court in High Court of Bombay dismissed Suit No. 656 of 1989 for want of prosecution due to non-appearance of plaintiff. Other suits listed for directions.
Suit No. 656 of 1989 dismissed for want of prosecution; commissioner to record evidence in Suit No. 588 of 1989.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.588 OF 1989
Mr. Rohinton Merchant
….Plaintiff
Vs.
Framroz Apartments Pvt. Ltd. & Ors. ….Defendants
WITH SUIT NO.656 OF 1989 WITH
SUIT NO.7 OF 2004
Mr. Adhiraj Malhotra I/b. Dunmorr Sett for plaintiff in S/588/1989. None for plaintiff in S/656/1989.
Ms. Soma Singh I/b. Mr. Deepak A. Lad for defendant nos.1 and 2 in all three suits.
Ms. Prerna Gandhi I/b. M/s. Manilal Kher Ambalal and Co. for defendant no.4 in S/656/1989 and for plaintiff in S/7/2004.
CORAM : K.R.SHRIRAM, J. DATE : 28th SEPTEMBER 2018
P.C.:
SUIT NO.656 OF 1989
1 On 23rd August 2018 the following order was passed :
1. None for plaintiff. Ms.Singh states the suit is getting settled and consent terms will be filed on the next date. It is made clear that if consent terms are not filed, parties will go on with the matter and plaintiffs do not remain present, suit may get dismissed for want of prosecution.
2 Even today there is nobody present for plaintiff. Therefore, suit
dismissed for want of prosecution.
SUIT NO.588 OF 1989
At the outset, Ms. Singh states that within one week from today
defendant nos.1 and 2 will file their list of witnesses and serve a copy
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thereof upon plaintiff. Statement accepted.
Name : Ashok Hotchand Advani (DW-1) Age : 73 years Occupation : Business Address : 21, Framroze Court, 205 Netaji Subhash Road, Marine Drive, Mumbai 400 021 on S.A.
Examination-in-chief by Ms. Soma Singh for defendant nos.1 and 2.
I say that I have filed two affidavits in lieu of examination in chief one affirmed on 13th October 2016 and the other (further affidavit) affirmed on 6th September 2018. I identify my signature in both the affidavits.
P.C.: The affidavits are taken on record and marked Exhibit D-1/1 and Exhibit D-1/1A , respectively. With these affidavits, defendant nos.1 and 2 have also filed a compilation of 19 documents and the serial numbers given below relate to the index to the compilation of documents :
| Sr. No. | Exhibit number |
|---|---|
| (1) | Exhibit D-1/2 |
| (2) | This document is received in evidence and markedExhibit D-1/3 except the circled portion in page 7 |
| (3) | Exhibit D-1/4 only to the extent that this photocopy was received by the witness from his advocates Ambubhai and Diwanji and subject to proof of truth of its contents. |
| (4) | Y-1 for identification |
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| (5) | Y-2 for identification |
|---|---|
| (6) | Y-3 for identification |
| (7) & (8) | Exhibit D-1/5 andExhibit D-1/6 ,respectively |
| (9) | Exhibit D-1/7 |
| (10) | Exhibit D-1/8 |
| (11) | Exhibit D-1/9 |
| (12) | Exhibit D-1/10 subject to proof of truth of its contents |
| (13) | Exhibit D-1/11 subject to proof of truth of its contents |
| (14) | Exhibit D-1/12 subject to proof of truth of its contents |
| (15) | Y-4 for identification |
| (16) | Y-5 for identification |
| (17) | Exhibit D-1/13 subject to producing certified copy of this order. Ms. Singh states that the application for certified copy will be made by 3rdOctober 2018. Statement accepted. |
| (18) | Y-6 for identification |
| (19) | Exhibit D-1/14 |
The Commissioner appointed earlier to continue recording of evidence on the same terms and conditions. The fees, administrative expenses of the Commissioner together with typing charges and venue charges, if any, to be shared equally between plaintiff and defendant nos.1 and 2 and the same together with costs already incurred on the commission shall be costs in the suit.
The Commissioner to endeavor to complete recording of evidence of DW-1 by 30th November 2018. The Commissioner to fix minimum two/three dates per session for cross examination of DW-1. If the parties do not respond promptly within 48 hours of receiving a
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communication from the Commissioner suggesting the subsequent dates, the Commissioner to go ahead and fix the dates convenient to the Commissioner and the parties shall make themselves available at the time and dates fixed by the Commissioner. If defendant nos.1 and 2 or witness does not remain present, the Commissioner should close the evidence of DW-1 as not made available for cross and if plaintiff does not remain present to cross examine the witness, plaintiff's cross examination should be treated closed as no cross. Once the dates are fixed, the Commissioner not to grant adjournment on any ground whatsoever. The Commissioner to identify the documents and mark them in sequence as provided in this order and to record cross examination of the witness.
SUIT NO.7 OF 2004
Suit to be listed for directions alongwith suit no.588 of 1989 on 7th December 2018.
(K.R. SHRIRAM, J.)
Gauri Digitally signed by Gauri Amit Amit Gaekwad Date: 2018.10.01 Gaekwad 18:08:33 +0530
Gauri Gaekwad
Mr. Rohinton Merchant
Framroz Apartments Pvt. Ltd.
K.R. Shriram
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
