Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 109 OF 2020
(CNR NO. MH CC01-000275-2020)
IN
STAMP NO. 4119 OF 2019
Nanda Raju Deewar ].. Plaintiffs.
V/s.
1. The State of Maharashtra ]
and other. ]..Defendants.
Advocate Mr. Nita Jain for the plaintiff.
Advocate Mr. Kapse for defendants/State.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 11th NOVEMBER 2022
ORAL ORDER
The Notice of Motion is filed by the plaintiff for setting
aside the dismissal order dated 27.11.2019 passed by this Court and
restoration of the Suit and allowing her to serve the writ of summons
upon the defendants.
2. It is the case of the plaintiffs that the Suit is filed for
declaration that Shri Raju @ Rajaram Baban Diwar is presumed to be
dead.
3. The plaintiff has filed affidavit in support of Notice of
Motion wherein he has stated that he could not remain present before
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the Court as by mistake he noted wrong date and he came to know
from his advocate that the suit came to be dismissed, as his advocate
also busy in other Court. If the suit is not restored, the plaintiff will
suffer irreparable loss, as the suit was filed by the plaintiff in urgency.
The husband of the plaintiff is missing since 2002 and it is necessary to
file the death certificate for operating account which is still in his name
and not used the time. The condition of the plaintiff become very poor
and not having alternative to file the suit. She is not having any
support so the she has to work for the bread and butter for her minor
children. Hence, prayed for allowing Notice of Motion.
4. The defendant No.1 has filed reply to the Notice of Motion
and raised objection, as the plaintiff has not made out any case for
restoration of the suit. The husband of the plaintiff was missing since
2002, no steps were taken until the year 2008 and missing complaint
was lodged with defendant No.1 on 15.03.2008. The cause of action
arose only from 15.03.2008. Hence, prayed for rejection of Notice of
Motion
5. Heard the learned advocate for the plaintiff and the learned
advocate for the defendants.
6. Perused plaint, Notice of Motion, affidavit and roznama. It
appears that the suit came to be dismissed on 27.11.2019 for want of
leave under section 80(2) of C.P.C. On that day, the plaintiff and her
advocate absent due by mistake she noted wrong date. She has filed suit
for declaration of death certificate of her husband. The death certificate
of her husband is necessary required to produce in the bank and for
other purpose. The Notice under section 80(2) of C.P.C. is not
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mandatory to issue upon the defendants in this matter. Hence, in my
considered opinion, Plaintiff deserves one opportunity to get her Suit
tried on merits. She has shown sufficient cause for restoration of the
suit to its original stage. In view of the above discussion, I proceed to
pass the following order.
ORDER
1. Notice of Motion No.109 of 2020 is made
absolute.
2. Suit (Stamp No.4119 of 2019) be restored to its
original stage.
2. Notice of Motion No.109 of 2020 is disposed of
accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 11/11/2022 Gr. Bombay.
Dictated on : 11/11/2022
Transcribed on : 11/11/2022
Signed on : 11/11/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
14/11/2022 At 3.50 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
11/11/2022
Judgment/Order signed by P.O. on 11/11/2022
Judgment/Order uploaded on 14/11/2022
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