Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.90/2018
in S.C. Suit No.2280/2012
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.90 of 2018
(CNR NO. MH CC010002562018)
In
S.C. SUIT No.2280 OF 2012
Shri Somnath Vishnu Abhang. ….Plaintiff
V/s.
Smt. Anusaya Vishnu Abhang & Ors. ....Defendants
Appearance:
Mr.Somnath Vishnu Abhang, in person .
Mr.K.B.Bhambid, Advocate for the defendant Nos.1 and 2 .
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 04 th January, 2020.
ORDER
1. By this notice of motion, plaintiff has prayed for setting aside
the order dated 08.12.2017 and prayed for restoration of the suit.
2. In support of notice of motion, affidavit is filed by the
plaintiff. It is averred that he is diabetic patient since last 15 years and
suffering from high blood pressure. He is advised by his doctor to take
complete bed rest. It is further averred that unfortunately his previous
advocate Mr V.S.S.Thakur had gone for heart surgery and therefore he
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2 Notice of Motion No.90/2018
in S.C. Suit No.2280/2012
gave N.O.C. to engage another advocate. Thereafter, the plaintiff
engaged another advocate who was not attending the matter. Therefore,
another advocate was appointed who also was not able to remain present
before the Court due to heavy work. Finally, the plaintiff engaged an
advocate Ms. Pargoankar. It is averred that due to aforesaid reasons the
evidence could not be tendered on record. On 08/12/2017 when the
matter was called out, due to absence of plaintiff and his advocate, the
suit was dismissed in default. Therefore, it is prayed that the notice of
motion may kindly be made absolute.
3. In response to the notice, the defendant nos.1 and 2
appeared and tendered their reply. It is averred by the defendants, that
the plaintiff is not interested in leading evidence in spite of availing
various opportunities. Therefore, due to grave negligence of plaintiff, he
is not entitled to seek the relief of restoration of the suit. According to
the defendants, the suit is filed against the mother of plaintiff who is 80
years old and suffering from various ailments and only with the intention
of extracting money from her, the present suit is filed.
4. It is denied by defendants that the plaintiff is a diabetic
patient. On 18.04.2015, the plaintiff himself has filed application for
discharging his advocate and on 20.10.2015 another advocate was
appointed by the plaintiff. However, no evidence was tendered by the
plaintiff and therefore, suit has been dismissed. For all these reasons, it
is prayed that notice of motion may kindly be dismissed with cost.
5. Heard learned advocate for plaintiff and learned advocate
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3 Notice of Motion No.90/2018
in S.C. Suit No.2280/2012
for defendant nos.1 and 2. Defendant nos.3 and 4 failed to file reply to
the notice of motion. Learned advocate for plaintiff submitted that due
to engaging new advocate on record and due to ailment of plaintiff, he
could not lead evidence on fixed date. The notice of motion for
restoration of the suit is filed within the limitation and therefore, it is
prayed that it be made absolute.
6. On perusal of record, it appears that issues are framed in the
suit on 20.03.2014 and since then the plaintiff has not tendered the
evidence. On 08.12.2017, due to absence of plaintiff and his advocate
suit was dismissed in default. The present notice of motion was filed on
04.01.2018 i.e. within 30 days of the dismissal order. Though plaintiff
has not filed on record any medical certificate to show that he was
suffering from diabetic, the record shows that due to engagement of
another advocate on record, the evidence was not tendered.
7. Learned advocate for plaintiff has cited the judgment in the
case of “V. Narayanaswamy v/s. Smt. Doddavenkatamma And Ors.
H.R.2006 KAR 983, 2006 (1) KarLJ 566” and in that case the
judgment of “G.P.Srivastav V/s. R.K. Raizada and Ors” is referred
wherein it is observed by Hon'ble Apex Court that :
The 'sufficient cause' for nonappearance refers to the date on
which the absence was made a ground for proceeding exparte
and not for the absence on the previous dates. Where the party
approaches the Court immediately and within the statutory
period, the discretion should normally be exercised in his favour,
provided the absence was not mala fide or intentional.
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4 Notice of Motion No.90/2018
in S.C. Suit No.2280/2012
It is further observed that the application for setting aside the
dismissal order was filed by the plaintiff within statutory period of 30
days from the date of dismissal of the suit. The ratio laid down in the
cited judgment is squarely applicable to the present set of fact as present
notice of motion is filed by plaintiff within 30 days from 08.12.2017 i.e.
from the date of the dismissal of the suit. Therefore, I am of the opinion
that opportunity needs to be given to the plaintiff for tendering evidence
in the suit for the sufficient cause shown by him for restoration of the
suit. However, for delay in tendering evidence on record since from the
date of framing issues, defendant no.1 and 2 should be compensated
sufficiently.
9. Learned advocate for the plaintiff has cited the judgment in
the matter of “Nandkishor s/o. Damodhar Wadgaonkar and Another
Vs. Gajanan s/o. Uttamrao Pede Civil Revision Application No. 164 of
2013 on 14th August 2013 and Lanka Venkateswarlu (D) by Lrs. V/s
State of A.P.” Considering the facts and ratio laid down in the cited
case laws above, I am of the opinion that the learned advocate for
plaintiff has not properly gone through the facts and ratio of the cited
cases because in that case the order of restoration of suit passed by the
4th Joint Civil Judge (Senior Division), Aurangabad was set aside in the
said civil revision application and order of Hon'ble High Court of setting
aside the dismissal order and restoration of the appeal is set aside by the
Hon'ble Apex Court. Therefore, with due respect to the observation in
the cited Judgments, I am of the opinion that tose are not applicable to
the present set of facts. Resultantly, I pass the following order.
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5 Notice of Motion No.90/2018
in S.C. Suit No.2280/2012
ORDER
1. Notice of Motion No. 90 of 2018 is made absolute in terms of
prayer clause (a) subject to cost of Rs. 4,000/ each to the
defendant nos.1 and 2 to be paid within 30 days from date of
order.
2. Payment of costs is condition precedent and failure to make
compliance, the notice of motion stands dismissed automatically.
3. After payment of costs, Suit No.2280/2012 be restored to its
original stage.
4. Notice of Motion No.90/2018 stands disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 04/01/2020
Dictated on : 04.01.2020
Transcribed on : 06.01.2020
Signed on : 09.01.2020
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6 Notice of Motion No.90/2018
in S.C. Suit No.2280/2012
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
10.01.2020 01.05 p.m. Mrs. P. R. Wagh
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 04.01.2020
Order signed by P.O. on 09.01.2020
Order uploaded on 10.01.2020
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