Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 53-19 in SU no. 3112-11
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 53 OF 2019
(CNR no. MHCC010001212019)
IN
LONG CAUSE SUIT NO. 3112 OF 2011
(CNR no. MHCC010023112017)
Mr. Satinder Trilochan Nanda ]....Plaintiff
V/s
1. New Horizon CoOp. Hsg. Soc. & Ors. ]....Defendants
Appearances:
Ld. Advocate Ms. Nikita Bhavsar for the Plaintiff.
Ld. Advocate Andrews for defendant nos. 2 and 3.
CORAM : HIS HONOUR JUDGE
SHRI M. SALMAN AZMI
(Court Room no. 1)
DATED : 21st August, 2019
O R A L O R D E R
1. This notice of motion has tendered by plaintiff for setting aside
the order of dismissal and restoration of the suit after condoning the
delay for filing of notice of motion for restoration.
2. Heard The Ld. Counsel for the plaintiff submitted that the suit
was dismissed for default on 21.07.2018. The plaintiff could not remain
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2 NM no. 53-19 in SU no. 3112-11
present as he was suffering from burning injuries. The burning injury
was caused to the plaintiff on his waist and right thigh. Plaintiff was
hospitalized for considerable period and therefore, he could not contact
his advocate. The advocate could not attend the last date of hearing i.e.
21.07.2018. The plaintiff again met with an accident on 01.08.2018
suffered lot of injuries and therefore, could not contact his advocate.
The plaintiff has contacted to his advocate on record who made inquiry
and obtained Roznama. The plaintiff submitted that if the suit is not
restored the plaintiff would suffer immensely and irreparably.
2. The learned advocate for the defendant nos. 2 and 3 has not filed
reply to notice of motion. He argued that the plaintiff deliberately did
not prosecute the suit. The plaintiff was injured in the month of July
and August but thereafter, he has not given reason for delay in filing
notice of motion after the period of limitation. Hence, delay should not
be condoned. On perusal of the record, it reveals evidence of PW1 was
filed and documents were marked. The matter was adjourned for cross
examination on 13.07.2018. On that day plaintiff failed to appear
therefore, the suit came to be dismissed in default. The plaintiff has
filed the document demonstrating the fact that he suffered serious
injury during the period when the suit was dismissed in default.
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3 NM no. 53-19 in SU no. 3112-11
Further, the plaintiff met with an accident in August 2018. The F.I.R. in
respect of the same is filed on record. The documents of treatment are
also filed along with notice of motion. It appears from the documents
filed by the plaintiff that the plaintiff was unable to attend the Court
due to illness when the matter was for effective hearing. Thereafter, he
met with an accident. The documents to that effect stand testimony to
the said fact. It appears that plaintiff has made out sufficient cause for
condoning the delay and to restore the suit. Even otherwise, there
should not be hypertechnical and pedantic approach in deciding with
such type of petition. For substantial justice the present notice of
motion needs consideration. The defendants no. 2 and 3 are
prosecuting this application and therefore, they are required to be
compensated. Hence, I pass the following order :
ORDER
1. The Notice of Motion no. 53 of 2019 is allowed in terms of prayer
clause (a) and (c) subject to cost of Rs.5,000/ to be paid to the
defendant nos. 2 and 3 within a period of four weeks.
2. Payment of costs is subject precedent.
3. The suit be restored to its original file after compliance of the
order.
4. Suit is expedited.
(M. SALMAN AZMI)
Judge,
Date : 21.08.2019 City Civil Court, Mumbai.
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4 NM no. 53-19 in SU no. 3112-11
Dictated on : 21.08.2019
Transcribed on : 27.08.2019
Signed on : 17.09.2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
19/09/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
21/08/2019
Judgment and order signed by P.O. 17/09/2019
Judgment/order uploaded on 19/09/2019
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