Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.35 OF 2019
IN
S.C. SUIT NO.3443 OF 2012
(HIGH COURT SUIT NO.1367 OF 2012)
Vijaya Bank ] … Plaintiff
V/s.
1. Deepak Madhukar Kadam & Anr. ] ... Defendants
Appearances :
Mr. K.B. Adyanthaya, Ld. Adv. for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 19th December, 2019
ORAL ORDER
1. Plaintiff has taken out this Notice of Motion to set aside the
order of dismissal of suit dated 17.11.2018 and to restore the suit to its
original stage.
2. Plaintiff filed affidavit of service on record. Defendant did
not appear.
MHCC01-000074-2019
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3. In brief, it is contention of the plaintiff that the suit is filed
for recovery of amount. Defendant inspite of service of writ of
summons did not appear in the matter and suit is proceeded exparte.
Suit was adjourned on 17.9.2018 for Exparte evidence. The advocate
for plaintiff and plaintiff did not remain present before the Court on
17.11.2018. Due to absence of plaintiff and plaintiff's advocate the suit
dismissed for default on 17.11.2018. In fact plaintiffs had already filed
evidence affidavit alongwith documents on record. The absence of
plaintiff and plaintiff's advocate on 17.11.2018 is not deliberate. The
advocate of the plaintiff was under impression that the matter was
adjourned for filing precipe to the extent that the affidavit of evidence
and documents are already filed on record on behalf of plaintiffs be
treated as it's evidence. Therefore, the said order be set aside and suit
be restored at its original stage.
4. Defendants did not appear inspite of service of this Notice
of Motion. Perused Roznama dated 17.11.2018. It is mentioned
therein that suit proceeded Exparte against the defendant Nos.1 and 2.
Plaintiff and advocate of plaintiff absent. Therefore, suit dismissed for
want of prosecution.
5. Perused Order 9 Rule 3 of the CPC. 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.
6. 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
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may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his nonappearance, 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.
7. Perused Article 122 of the Limitation Act, 1963. As per the
said provision period of limitation is 30 days to file application from the
date of order of dismissal to restore a suit dismissed for default of
appearance or for want of prosecution.
8. Perused Section 5 of the Limitation Act. As per the said
provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
may be admitted after the prescribed period, if the appellant or the
applicant satisfies the Court that he has sufficient cause for not
preferring the appeal or making the application within such period.
9. I have gone through the record. It appears that, plaintiff
has filed evidence affidavit on 12.02.2014. Documents were marked on
14.09.2015. The suit is dismissed for default on 17.11.2018 and this
Notice of Motion is filed on 14.12.2018. This Notice of Motion is filed
within limitation. It is contention of the plaintiff that he was under
impression that his presence was not required on 17.11.2018.
Therefore, he did not appear on 17.11.2018. His advocate also did not
appear on 17.11.2018. After going through the record and grounds
mentioned in this Notice of Motion for absence of plaintiff and his
advocate on 17.11.2018, I am of the opinion that plaintiff has made out
justifeable grounds to set aside the said order. Therefore, the said order
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of dismissal of suit dated 17.11.2018 can set aside and the said suit can
be restored at its original stage. Hence I proceed to pass following
order:
ORDER
Notice of Motion No.35 of 2019 is allowed as under:
1. Order of dismissal of suit for default dated 17.11.2018 is hereby
set aside.
2. The suit is restored at its original stage.
3. The plaintiff is directed to remain present before this Court on
03.02.2020 at 11.00 a.m.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 19/12/2019 City Civil Court, Gr. MUMBAI
Dictated on : 19/12/2019.
Transcribed on : 24/12/2019.
Signed on : 27/12/2019.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01.01.20 at 12.31 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 19.12.19
Judgment/order signed by P.O. on 27.12.19
Judgment/order uploaded on 01.01.20
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