Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.165/2018 in L.C.Suit No.1959/2014
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.165 OF 2018
(C.N.R.No. MHCC010006022018)
IN
CHAMBER SUMMONS NO.2303 OF 2014
IN
L.C. SUIT NO. 1959 OF 2014
(C.N.R.No. MHCC010072282014)
Shaikh Aijaz Ahmed, ]
Aged 44 years, Occupation : Business ]
Residing at 447, Kaushalya Niwas, ]
2nd floor, Room No.10, ]
New Mill Road, Kurla (West), ]
Mumbai – 400 070. ]..Plaintiff.
V/s.
Municipal Corporation of Greater ]
Bombay, body Corporate having its ]
Office at Mahapalika Marg, Fort, ]
Mumbai 400 001. ]..Defendant.
AND
Vijay K. Manthena, ]
Age 44 years, Occupation: Business ]
R/o, 7/34 Hariyanwala Lane, ]
Abdulla Mansion Station Road, Kurla, ]
Mumbai 400 070. ].. Applicant
Advocate Mr. Yuvraj Patil for applicant.
Advocate Mr. Yadav h/f Advocate Mr. Shukla for plaintiff.
Advocate Mr.Khandagle for BMC/defendants.
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2 N/M No.165/2018 in L.C.Suit No.1959/2014
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.11)
DATE : 9th FEBRUARY 2018
ORAL ORDER
This Notice of Motion has been taken out by the applicant
for recalling of dismissal order passed in Chamber Summons
No.2303/2014 on 30.08.2016 and for restoration of Chamber Summons
to its original stage.
2 The applicant has filed affidavit in support of notice of
motion. It is averred that he has filed chamber summons to implead
him as party defendant. The plaintiff has filed detail reply to his
chamber summons. Thereafter, the applicant has filed rejoinder to the
reply and matter was adjourned for hearing on the chamber summons.
3 It is further averred that the advocate was appearing on his
behalf informed that he was unable to attend the matter due to some
personal reason and matter was transferred to his friend and requested
him to get following with the said advocate friend. On 30.08.2016, the
matter was on board and the applicant was not aware about the date
and he has engaged the advocate to attend the matter, who was not
informed the same. Therefore, the applicant and his advocate not
attended the matter on the same date and the Court passed dismissal
order in Chamber Summons for non prosecution.
4 It is further averred that the matter was dismissed on the
technical ground and for the same the plaintiff will suffer loss. If the
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3 N/M No.165/2018 in L.C.Suit No.1959/2014
order dated 30.08.2016 is recalled and set aside, the applicant will
undertake to proceed the matter on day to day basis without fail. It is
further averred that the applicant was not able to take out the chamber
summons within the stipulated time, as his advocate had been to his
native place at Lathur. Due to negligence and act of the advocate the
applicant cannot be suffer. The delay caused is only due to
misunderstanding of the date. Therefore, the delay is to be condoned in
the interest of justice. No prejudice would be likely to be caused to the
plaintiff and the defendant, as they will have every opportunity to
oppose the matter on merits. Thus, prayed for allowing notice of
motion.
5 The Plaintiff has filed his affidavit in reply and contended
that notice of motion is not maintainable at all, in absence of any
separate application for condonation of delay. The applicant appears to
be a fictitious person and a person of shadow character, as he has failed
to give his residential address as well as occupation in order to
substantiate his case. The applicant has failed to count and give exact
date of delay in taking out the present notice of motion. The Hon'ble
Apex Court has expressed its view that uncounted delay cannot be
condoned in any case.
6 It is further contended that the present applicant, only on
the basis of fictitious and made concocted false story that the advocate
on record for the applicant had suggested the applicant to engage some
other advocate and accordingly, the applicant has engaged and that so
called engaged advocate did not appear in the case and not informed
the applicant about the date. However, the record of the Court clearly
reflect that no other advocate was ever appeared at any time as
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4 N/M No.165/2018 in L.C.Suit No.1959/2014
contended as well as no specific name of any other advocate except
present advocate is on record. The applicant has not come with clean
hands and has tried to play fraud upon the Court. The order dated
30.08.2016 passed in chamber summons is not barred by law of
limitation. The plaintiff has denied the averments made in the affidavit
in support of notice of motion. Thus, prayed for dismissal of notice of
motion along with costs.
7 Heard the learned advocate for the applicant, the learned
advocate for the plaintiff and the learned advocate for the defendant at
length.
8 It is submitted by the learned advocate for the applicant
that to avoid further delay, he has taken out this notice of motion.
Further, it is argued that there is rejoinder also filed by the applicant to
reply of chamber summons. The reason is only on account of change of
advocate and for that purpose one should not be suffered. Besides, it is
argued by the learned advocate for the plaintiff that there has occurred
delay, which is not explained, in view of Rules of City Civil Court. The
present Notice of Motion is not maintainable. There is no vakalatname
of new advocate. Therefore, in the facts and circumstances, he has
urged for dismissal of notice of motion.
9 It appears from the record of the suit that Chamber
Summons was posted for hearing on 04.12.2015. Thereafter, on
15.06.2016, the advocate for the applicant has filed rejoinder to reply.
Then on the next date i.e. 12.08.2016, the applicant and his advocate
absent and again on 30.08.2016, the applicant and his advocate absent
and chamber summons was dismissed for want of prosecution on
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5 N/M No.165/2018 in L.C.Suit No.1959/2014
30.08.2016. The applicant has given reason in affidavit in support why
the applicant was absent on the fixed date of hearing of chamber
summons. Further he has stated that his advocate transferred the
matter to his friend. But he was not aware about the date fixed on
30.08.2016. It was not informed to him. Further, he has stated reason
for delay caused in filing notice of motion due to absence of his
advocate, as his advocate had been to his native place at Lathur.
Therefore, the applicant failed to take out notice of motion within
stipulated time. Thus, in all circumstance, it appears that if this notice
of motion is allowed by condoning the delay caused, no prejudice
would be caused to the defendant, but it will help to avoid multiplicity
of the proceedings. In order to decide issue raised in chamber summons
on merits, it is just and proper to allow the present notice of motion.
But considering the delay caused, it is just to impose heavy costs on the
applicant, while allowing notice motion in the interest of justice.
10 Thus, in view of above discussion, cause shown by the
applicant for restoration of the Chamber Summons is sufficient. If notice
of motion is not allowed, irreparable loss would be caused to the
applicant. Therefore, in the interest of justice, notice of motion is to be
allowed by imposing costs on the applicant With this, I proceed to pass
the following order:.
ORDER
1 Notice of Motion No. 165 of 2018 is made absolute in terms of
prayer clause (a), (b) and (c), subject to the payment of costs of
Rs.5,000/ payable by the applicant to the plaintiff on or before next
date.
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6 N/M No.165/2018 in L.C.Suit No.1959/2014
2 On payment of costs, chamber summons be restored on next date
and it be kept for final hearing.
3 Notice of Motion No.165 of 2018 stands disposed of accordingly.
(S. P. PONKSHE)
Judge,
City Civil Court,
Gr. Bombay.
Date: 09/02/2018.
Dictated on : 09/02/2018
Transcribed on : 12/02/2018
Signed on : 20/02/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21/02/2018 At 3.35 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
09/02/2018
Judgment/Order signed by P.O. on 20/02/2018
Judgment/Order uploaded on 21/02/2018
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