Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010001322020
IN THE BOMBAY CITY CIVIL COURT AT GR. MUMBAI
NOTICE OF MOTION NO.50 OF 2020
IN
S. C. SUIT NO.2860 OF 2017
Mohammed Shahid Jamal Shaikh … PLAINTIFF
Versus
Suresh Rambhau Dunge … DEFENDANTS
APPEARANCES:
Mr. Shailesh Pal, Advocate for Plaintiff.
None for Defendant.
CORAM: V. M. SUNDALE, ADHOC JUDGE
COURT ROOM NO.02
DATED: 09th FEBRUARY, 2026
ORDER
01. This is a Notice of Motion taken out by the applicant /
original plaintiff for setting aside the dismissal order dated 16.10.2019
whereby Suit No. 2860 of 2017 came to be dismissed for non-
compliance, for restoring the suit to its original number, for
condonation of delay of 48 days in filing the present Notice of Motion
and for such other and further reliefs as the nature and circumstances of
the case may require.
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(2)
02. The facts, in brief, are that the plaintiff has filed the present
Suit in respect of the premises described as Gala/Hutment No. A,
admeasuring 10 x 15 feet, made up of B.M. wall partly with A.C. sheet
roof and tin shed, situated near Kurla Nagarik Sahakari Bank, opposite
BEST Bus Stop No. 332, Kurla (West), Mumbai–400070. The plaintiff
contends that he is in occupation of the suit property on the basis of an
Agreement of Sale dated 01.10.2013 and that he has paid part
consideration of Rs.13,50,000/- to the defendant. It is further
contended that the balance amount of Rs.16,50,000/- was agreed to be
paid after the defendant clears the title of the suit property and
completes the transaction. The plaintiff states that due to pending
litigations and disputes relating to the title, the transaction could not be
completed and the original documents were kept in escrow with the
defendant’s advocate.
03. The plaintiff further states that after filing of the suit, the
writ of summons was prepared but the same could not be tendered for
noting and further action due to health issues of his Advocate on record
and due to the fact that the junior who was handling the matter had left
the office. It is stated that due to oversight, the Writ of Summons
remained unattended and the matter ultimately came to be dismissed
on 16.10.2019 for non-compliance. The plaintiff contends that he was
under a bona fide belief that the matter was being attended to by his
advocate and that the litigant should not suffer for mistake and lapses
of the advocate. The plaintiff therefore seeks recall of the dismissal
order and restoration of the Suit along with condonation of delay of 48
days in filing the present Notice of Motion.
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Order (3) Notice of Motion No.50/2020
In Suit No.2860/2017
04. Though the notice of the present Notice of Motion has been
duly served upon the defendant, the defendant has remained absent.
Despite service, the defendant has not appeared before this Court and
has not filed any reply or contested the application. Hence, the present
Notice of Motion is proceeded with in the absence of the defendant and
is decided on the basis of the record and submissions advanced on
behalf of the plaintiff.
05. Heard Mr. Shailesh Pal, learned advocate for the plaintiff
and perused the record.
06. Upon hearing the learned advocate for the plaintiff and
upon perusing the Notice of Motion and affidavit in support, the
following points are arisen for my determination. I have recorded my
findings with reasons to follow it as under:
S.N. POINTS FINDINGS
01. Whether the plaintiff has shown sufficient
cause for the non-compliance resulting in
dismissal of the Suit on 16.10.2019?
Yes
02. whether the plaintiff has shown sufficient
cause for condonation of delay of 48 days in
filing the present Notice of Motion
Yes. Subject
to costs
03. What order? As per final
order.
REASONS
POINT NOS. 01 TO 03:
07. These points are required to be considered in light of the
settled principles that procedural law is meant to advance justice and
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(4)
that ordinarily disputes should be decided on merits, unless the conduct
is grossly negligent or contumacious. So far as the dismissal is
concerned, the plaintiff has attributed the lapse to the health condition
of his advocate and the subsequent failure in taking steps for service of
Writ of Summons, along with the fact that the junior handling the file
left the office. The affidavit in support indicates that the Writ of
Summons was prepared but remained in the file and could not be
processed due to oversight. Though such explanation cannot be
accepted as an ideal conduct expected from a litigant, it is equally
settled that a party should not ordinarily be non-suited merely due to
lapses on the part of the advocate, particularly when the dispute
involves civil rights in respect of immovable property. The dismissal
order was not on merits but was for default/non-compliance, and
therefore, restoration can be considered if the plaintiff shows bona fides
and readiness to comply with further directions.
08. As regards the delay of 48 days in filing the present Notice
of Motion, the said delay is not inordinate. The plaintiff has stated that
he was under the impression that the matter was being attended by his
advocate and he came to know about the dismissal subsequently. In
such matters, Courts have consistently taken a liberal approach while
considering condonation of short delays, provided the explanation is
plausible and does not reflect mala fides. In the present case, the
plaintiff has expressed willingness to abide by conditions and to take
immediate steps for prosecution of the Suit. Hence, the delay deserves
to be condoned in the interest of justice, though not without imposing
costs so as to balance equities.
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Order (5) Notice of Motion No.50/2020
In Suit No.2860/2017
09. It is also necessary to consider that if the Suit is not
restored, the plaintiff would be left without an adjudication on merits
and may suffer irreparable prejudice. On the other hand, restoration of
the suit does not take away any substantive defence of the defendant
and the defendant can contest the Suit on all available grounds. The
prejudice to the defendant, if any, can be compensated by costs and by
imposing strict timelines upon the plaintiff to complete the pending
procedural steps. The balance of convenience therefore lies in favour of
restoration, provided the plaintiff is put to terms and made accountable
for diligent prosecution henceforth. In view of the above discussion, this
Court is satisfied that the plaintiff has shown sufficient cause for recall
of the dismissal order dated 16.10.2019 and for restoration of the Suit.
However, the explanation indicates lack of due diligence, and therefore,
the plaintiff must be burdened with costs and directed to comply with
all procedural steps within a fixed time. Such an order would meet the
ends of justice and ensure that the defendant is not prejudiced due to
any further defaults. In view of my above discussion, I answered Point
No. 1 & 2 in affirmative and in reply to Point No.3, pass the following
order.
ORDER
(i) Notice of Motion No. 50 of 2020 in Suit No. 2860 of 2017 is
allowed.
(ii) Delay of 48 days in filing the present Notice of Motion is
condoned.
(iii) The order dated 16.10.2019 dismissing Suit No. 2860 of 2017 for
non-compliance is hereby set aside.
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(6)
(iv) Suit No. 2860 of 2017 is restored to its original file and number,
subject to the plaintiff paying costs of Rs. 2,500/- (Rs. Two
Thousand Five Hundred Only) to the defendant within 15 days
from today.
(iv) Notice of Motion No.50 of 2020 in Suit No. 2860 of 2017 is
accordingly disposed of.
Date: 09.02.2026
(V. M. Sundale)
Ad-hoc Judge,
Bombay City Civil Court,
Gr. Mumbai.
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Order (7) Notice of Motion No.50/2020
In Suit No.2860/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
12.02.2026 5.30 p.m. Shilpa P. Pawar
Stenographer - Grade IUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Adhoc Judge
Shri. V. M. Sundale
Court Room No.2
Date of Pronouncement of ORDER 09.02.2026
ORDER signed by P. O. on 11.02.2026
ORDER uploaded on 12.02.2026
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