Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.46/2019 ..1..
CNR No.MHCC010001112019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.46 OF 2019
IN
SUIT NO.8601 OF 1995 (DISPOSED OFF)
Stanilaus P.D. Monteiro alias Stanley Gregory .. Plaintiff
Versus
Ratan Maria Stanley Monteiro
Merlyn J. Monteiro and another .. Defendants
Ms. D'lima, advocate for plaintiff
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 10th October, 2019
ORAL ORDER
1. Notice of motion is taken out by the plaintiff to set aside order
dated 17th November, 2018 whereby suit No.8601 of 1995 was
dismissed in default and to restore said suit on the file of this Court.
2. It is the contention of applicant/plaintiff that he had filed
aforesaid suit before Hon'ble High Court under section 6 of the Specific
Reliefs Act against defendant Nos.1 and 2 claiming possession of the
suit flat. Subsequently, said suit was transferred to this Court. On 17th
November, 2018 said suit was on board for the purpose of filing of his
affidavit of evidence and original compilation of documents. It is
contended that due to his old age and indifferent state of health, severe
varicose veins condition his both legs are swollen and he rarely go out
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of the house. Even prior to 17th November, 2018 he took ill due to
severe congestion and could not take breath properly. He was unable to
communicate with his advocate as he was staying alone in the suit flat.
In the aforesaid circumstances he could not give necessary instructions
to his advocate to draft his affidavit of evidence in the said suit. It is
further contended that wife of his advocate on record was also
hospitalized during the said time and his advocate was unable to attend
the court. In above circumstances he made prayer in above terms.
3. Name of defendant No.1 since deceased has already been
deleted from the plaint. Defendant Nos.2 and 3 did not appear despite
service of notice of motion. Therefore, notice of motion proceeded
exparte against them.
4. Following points arise for my determination and I have recorded
my findings to the same with reasons to follow as under:
POINTS FINDINGS
1. Whether applicant/plaintiff proves that there
was sufficient cause for his nonappearance on
the date when suit was called for hearing?
…Yes
2. What order? As per final order.
REASONS
As to point No.1:
5. Perused notice of motion, affidavit in support of it and
compilation of documents filed by the plaintiff/applicant. Heard
learned advocate for plaintiff. I have also perused record and
proceeding in suit No.8601 of 1995. It is apparent from roznama dated
17th November, 2018 that suit was dismissed in default under Order IX
Rule 3 of CPC by my learned Predecessor as plaintiff failed to file
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affidavit of evidence. Present notice of motion is taken out by the
plaintiff within 30 days from the date of said order so it is within the
period of limitation as per Article 122 of the Limitation Act. Notice of
Motion filed by the applicant is supported by affidavit which is not
controverted by defendant Nos.2 and 3 as notice of motion proceeded
exparte against them. Contents of affidavit of the applicant is supported
by the documents filed by him. Photograph filed by him shows
condition of his both legs, copy of prescription of the plaintiff clearly
indicate that he is suffering from varicose veins condition since more
than 10 years and it also shows non healing condition of right foot. So
also, colour Doppler report also support contention of the applicant
about his illness and severe varicose veins condition. There is no reason
to disbelieve the statement on oath of the applicant that because of his
illness and severe varicose veins condition he could not give necessary
instructions to his advocate for drafting his affidavit of evidence and
that, his advocate could not attend the court as his wife was
hospitalised. The applicant/plaintiff has brought sufficient material on
record to suggest that there was sufficient reasons for him for his non
appearance in the present matter when it was called for hearing. Hence,
I answer point No.1 in affirmative.
6. In view of my findings to point No.1 in affirmative, order dated
17th November, 2018 deserves to be set aside and suit No.8601 of 1995
is required to be restored on the file of this Court subject to deposit of
costs. Hence, pass following order.
ORDER
1. Notice of Motion No.46 of 2019 is allowed and made absolute in
terms of prayer clause (a) subject to deposit of costs of Rs.500/
(Rupees Five Hundred only) by the plaintiff with D.L.S.A., Mumbai
within period of two weeks from the date of this order.
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2. On deposit of costs by the plaintiff, suit No.8601 of 1995 be
restored on the file of this Court at its original number and be posted at
its original stage.
3. Accordingly, notice of motion is disposed of.
(M. T. Asim)
Judge
Date : 10.10.2019 Gr. Bombay
Typed on : 10.10.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.10.2019, 5.45p.m
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
09.10.2019
JUDGMENT/ORDER signed by P.O.
on
10.10.2019
JUDGMENT/ORDER uploaded on 17.10.2019
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