Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.160/2019 ..1.. Suit No.7470/2005
CNR No.MHCC010004622019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.160 OF 2019
IN
SUIT NO.7470 OF 2005 (DISPOSED OFF)
Pandurang Narsinmha Kamat .. Plaintiff
Versus
Smt. Shantiben Vajralal Kapadia and others .. Defendants
Ms. Kritika Kothari, advocate for plaintiff
Mr. Indrajeet, advocate for defendant No.3
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 17th October, 2019
ORAL ORDER
Present notice of motion is taken out by plaintiff to set aside the
order dated 3rdDecember 2018 whereby Suit No.7449 of 2005 has been
dismissed in default and to restore the said suit to the file of this Court.
Plaintiff has also prayed for condonation of 02 days delay caused in
filing of present notice of motion.
2. It is the contention of plaintiff that suit No.7470 of 2005 was
listed on the file of this Court on 03.12.2018 for filing draft issues. On
that day, though his advocate was present before this Court but she had
to run before Hon'ble High Court to attend the urgent matter which was
to be called out and so, she could not attend the present suit when it
was called and this Court passed order of dismissing the suit for want of
prosecution.
-- 1 of 5 --
NM No.160/2019 ..2.. Suit No.7470/2005
3. It is further contended that by order dated 5th February, 2008
passed by Prothonotary and Senior Master, above suit was proceeded
undefended against defendant Nos.1 and 2. Written statement of
defendant No.3 is on record and its copy has not been served upon
plaintiff. Therefore, his advocate issued letter dated 10th October, 2018
calling upon advocate of defendant No.3 for furnishing the copy of
written statement but till date his advocate has not received copy of
written statement and therefore, draft issue could not be prepared. With
these contentions plaintiff prayed to allow notice of motion in above
terms after condoning the delay caused in filing notice of motion.
4. Defendant No.3 filed reply on notice of motion itself and leave it
to the order of the Court.
5. Notice of motion has been duly served upon defendant Nos.2
and 3 but defendant No.2 failed to appear inspite of service of notice of
motion. Therefore, it proceeded exparte against him. Registered
envelope relating to defendant No.1 returned with endorsement that
person has died. Learned advocate for plaintiff drawn my attention to
authority in the case of Patel Engineering Limited Vs. United Estate &
Builders Pvt. Ltd., Appeal From Order No.589 of 2011 with Civil
Application No.811 of 2011 decided on 25th August, 2011 by
Hon'ble Bombay High Court to point out that there is no need to hear
defendant when suit has been dismissed in default in absence of both
parties. In the cited authority it is held that “when suit is dismissed
when both the parties fail to appear it may be restored upon the
satisfaction of the court for the reason of nonappearance and
application for restoration could be filed by the plaintiff alone. The
court has to be satisfied of nonappearance. The matter is between the
-- 2 of 5 --
NM No.160/2019 ..3.. Suit No.7470/2005
plaintiff and the Court. If the defendant has also not appeared when the
suit was dismissed there is no provision for even notifying the
defendant of the application for restoration of the suit”. Keeping in
view above legal position I consider present notice of motion.
6. Perused notice of motion, affidavit in support of it, reply of
Defendant no.3. Heard respective counsel for parties. They advanced
their arguments in accordance with respective contention of parties.
7. In present case defendant No.3 has filed his reply and notice of
motion is proceeded exparte against defendant No.2. It is submitted
on behalf of plaintiff that legal representative of defendant No.1 is
already on record in the form of defendant No.2. It is clear that suit has
been dismissed when both parties were absent. So, in view of cited
authority there is no need to notify defendants while considering
present notice of motion. In this background now I consider notice of
motion.
8. At the outset I would like to mention that delay caused in
present notice of motion is of only two days and it cannot be said to be
inordinate and deliberate. More so, in the interest of justice and fair
trial it is unjust to throw notice of motion on technical ground of delay.
Therefore, I am inclined to condone delay caused in taking out present
notice of motion.
9. Plaintiff has assigned reason that when his advocate rushed to
attend the matter in Hon'ble High Court present matter was called and
it was dismissed in default. Certainly, for the fault if any, on the part of
advocate, parties should not suffer. It is to be noted that as per the
-- 3 of 5 --
NM No.160/2019 ..4.. Suit No.7470/2005
affidavit in support of notice of motion, plaintiff is aged 88 years and
certainly it would be difficult for him to attend court in such advance
age. Therefore, I am of the view that reason assigned by the plaintiff is
sufficient for his nonappearance and that of his advocate when matter
was called for hearing. Hence, I am inclined to allow notice of motion
with certain costs.
ORDER
1. Notice of Motion No.160 of 2019 is allowed and made absolute
in terms of prayer clauses (a) and (b) subject to deposit of costs of
Rs.1000/ in DLSA, Mumbai within period of three weeks from the date
of this order.
2. After deposit of costs by the plaintiff, suit No.7470 of 2005 be
restored on the file of this Court at its original number and it has to
proceed from original stage.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 17.10.2019 Gr. Bombay
Typed on : 17.10.2019
HHJ signed on :
-- 4 of 5 --
NM No.160/2019 ..5.. Suit No.7470/2005
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.10.2019, 11.15 am
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
17.10.2019
JUDGMENT/ORDER signed by P.O.
on
18.10.2019
JUDGMENT/ORDER uploaded on 19.10.2019
-- 5 of 5 --