Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 58/20 SUM.SUIT 1299/18 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.58 OF 2020
IN
SUMMARY SUIT NO.1299 OF 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR.NO.MHCC01-000138-2020)
Mr.Subhash Yelappa Kutade ...Plaintiff
Versus
Mr.Rajesh Harpal Dhakoliya ...Defendant
Appearances:-
Advocate Mr.B.S.Patil for the Plaintiff.
Advocate Mr.Rajesh Patil for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 25TH FEBRUARY 2020
O R D E R
1. By this Notice of Motion defendant requested to condone the
delay and set aside exparte order dtd.14.01.2019. The plaintiff resisted
the Notice of Motion. Heard Ld Advocates on behalf of both the parties.
2. The record reveals that summons has been served on the
defendant on 06.12.2018. However, the defendant did not appear.
Therefore, the then presiding officer passed Ex-parte order on
14.01.2019 against the defendant. The Affidavit in support of Notice of
Motion reveals that as the defendant had no knowledge about the
stipulation to file the vakalatnama/appearance within 10 days and
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NM 58/20 SUM.SUIT 1299/18 2
further the plaintiff had assured him to settle the matter, he did not
appear in the matter. It may be noted here that the reply filed by the
plaintiff is not on affidavit. The plaintiff did not specifically deny the
contention of the defendant that he was ignorant about the appearance
to be given within 10 days and regarding the assurance given by the
plaintiff about the settlement. Thus, the contentions in the affidavit are
reliable. The only objection raised on behalf of the plaintiff is that the
notice of motion is not as per section 5 of the Limitation Act. However,
it has to be noted that the prayer of the defendant is to set aside ex-
parte order simply and not ex-parte judgment and decree. The suit is
still pending and no decree has been passed. In this background, section
5 is not applicable. In any case the defendant has made out sufficient
cause as to why he did not appear in the suit. Considering the same and
in the interest of justice opportunity deserves to be given to the
defendant to participate in the proceeding. The plaintiff may be
compensated by payment of cost. Hence, order as follows is passed:
ORDER
1. The Notice of motion No.58/2020 is allowed as under:-
2. The delay caused to the defendant to appear and file vakalatnama
is condoned and the Ex-parte order dtd.14.01.2019 passed against the
defendant is set aside subject to cost of Rs.2000/- to be paid by the
defendant to the plaintiff.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 25/02/2020 City Civil Court,Gr. Mumbai
Dictated on : 25/02/2020
Signed on : 26/02/2020
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NM 58/20 SUM.SUIT 1299/18 3
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
27/02/2020 at 2.00p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 25/02/2020
Judgment/Order signed by P.O. on 26/02/2020
Judgment/Order uploaded on 27/02/2020
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