Final Order 2

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.172 OF 2019
IN
S.C.SUIT NO.124 OF 2013
Mrs.Laxmi Shivkumar Jaiswal and 3 others ..Plaintiffs
Versus
Kamrunnissa Mohammed Yakub Shaikh ..Defendant
Adv.Sandeep Dasgupta for the plaintiffs
Adv. M.K.Tanne for the defendants
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 29/02/2020
ORAL ORDER
1. This notice of motion is tendered by the plaintiffs for
condonation of delay and restoration of the suit.
2. Heard.
3. The contention of the plaintiffs is that plaintiffs have
also filed notice of motion no.714 of 2013.
Thereafter the matter was referred for mediation.
But, the matter could not be settled. Plaintiff no.2
was regularly attending the court. Plaintiff no.1 is a
old lady suffering from various ailments. On
04/04/2017, plaintiff no.4 found missing for more
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than one and half years. Thereafter plaintiff no.3
inquired about the matter and came to know about
dismissal of suit in default. The absence of the
plaintiffs was neither intentional nor willful. After
getting the knowledge of the dismissal of the suit, the
plaintiffs have taken out this notice motion. Hence,
prayed for allowing the notice of motion.
4. This notice of motion is opposed by the defendant.
The contention of the defendant is that avernments
in the notice of motion are false and frivolous. There
is considerable delay and reasons given are not
cogent. Hence, prayed for dismissal of the notice of
motion with exemplary costs.
5. If at all the plaintiff no.1 was suffering from various
health issues and plaintiff no.4 was missing for more
than one and half years, plaintiff nos.2 and 3 were
there to attend the Court. On perusal of the record,
it appears that plaintiffs have filed notice of motion
on 21/02/2013. On 12/03/2013, the statement was
made by the Ld. Counsel for the plaintiffs that
settlement talk is going on. On 28/04/2014, the
matter was shown for filing of the consent terms. Till
10/09/2014, the matter was shown for filling
consent terms. The matter was kept on 25/02/2015
for awaiting settlement report. On 06/01/2016, the
matter was adjourned for order and on 15/04/2016,
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the suit was dismissed for default.
6. On perusal of the roznama, it appears that the matter
was not for any effective date of hearing. The matter
throughout was for filing consent terms or awaiting
settlement report. The advocate for the plaintiffs
remained present in the matter till 21/06/2014.
Subsequently he was not present. As per order 9,
Rule 2 of the C.P.C. the suit can be dismissed where
summons not served in consequence of plaintiff’s
failure to pay the Court fee or postal charges. Order
9, Rule 3 of the C.P.C. provides that suit be dismissed
where neither party appears when the suit called for
hearing. Admittedly the roznama speaks for about
filing of the consent terms. The issues in the matter
have not been framed and therefore it cannot be said
that the matter was fixed for effective hearing. Even
otherwise in such type of application, hyper technical
and pedantic approach should not be adopted. As
per the contention of the plaintiffs, plaintiff no.1 is
suffering from various ailments and plaintiff no.4 is
missing since more than one and half years and this
can be considered as cause for condonation of delay.
It would be interest of justice of both the parties to
allow this notice of motion. No prejudice would be
caused to the defendant if the notice of motion is
allowed. Considering all these aspects, notice of
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motion needs consideration. Hence, it is expedient
to pass following order:-
ORDER
1. N/M No.172/2019 is made absolute in terms of
prayer clause (a) and (b) subject to cost of
Rs.5,000/- to be paid by plaintiffs to the defendant
within a period of four weeks from today.
2. Payment of cost is subject precedent.
3. On payment of cost, suit be restored to its file.
4. N/M No.172/2019 is disposed off accordingly.
29/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on: 29/02/2020
Transcribed on:05/03/2020
Signed on:12/03/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
13/03/20 at 11.45 am.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.16
Date of Pronouncement of judgment/
order
29/02/2020
Judgment and order signed by P.O. 12/03/2020
Judgment/order uploaded on 13/03/2020
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