Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.352 OF 2020
IN
SUMMARY SUIT NO. 4490 OF 2010
1. MITA JITENDRA SHAH ]
Age:47 years, Occupation: Housewife]
2. TEJAS JITENDRA SHAH ]
Age: 23 years, Occupation: Business ]
Residing at Flat No.902/C, 9th Floor, ]
Blue Bell Tower CHS Ltd. Bldg., ]
CTS No.330/5, Village Borivali, ]
Eksar Road, Borivali (West), ]
Mumbai400 091. ].. Plaintiffs.
V/s.
1. JAGRUTI SANDIP MORADIA ]
Age 29 years, Occupation: Housewife]
2. NILESH LIMBABAHI PATEL, ]
an adult, Occupation: Business, ]
Both residing at 135, Keshav Park ]
Society, Opp: Pandol Industries, ]
Ved Road, Surat, Gujarat – 395 004. ]..Defendants.
Advocate Mr. Sachin Masurkar for the plaintiffs.
Advocate Mr. K.H. Holambe Patil for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 26th AUGUST, 2021
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ORDER
The Notice of Motion is taken out for setting aside the
order of dismissal in default passed by this Court.
2. The facts of the case are that the matter was listed on
06.01.2020 before the Court for recording evidence of the plaintiffs.
The crossexamination of the plaintiffs was to be recorded. The plaintiff
No.2 has stated that his son, who is one year old was taken for medical
treatment. Therefore, he could not appear before the Court in time.
His learned advocate submitted before the Court to keep the matter
back informing the situation. However, initially, the matter was called
at 11.20 a.m. Subsequently, on 12.35 p.m. the Court proceeded to
dismiss the suit for want of prosecution.
3. It is the case of the prosecution that the plaintiff No.2 could
not avoid to take his son for medical treatment as he was of tender age.
It appears that the plaintiff No.2 came to the Court on the same day,
but only came to know that the suit was already dismissed.
4. The plaintiff No.2 has filed on record medical certificate
issued by Dr. Sheela Rathod stating that the son of plaintiff No.2 was
suffering from viral fever on 06.01.2020 and got treatment of this
doctor.
5. The defendants have objected the Notice of Motion on the
grounds that the plaintiff No.2 is much negligent in proceeding with the
suit. It was dismissed on 03.08.2013 also for want of the prosecution
and the plaintiffs got it restored by taking Notice of Motion
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No.1477/2014. The plaintiffs are protracting the matter for some or the
other reasons. Hence, the defendants have prayed for dismissal of
Notice of Motion.
6. I have gone through the record and proceedings. I have
heard both learned Advocates at length. The Medical Certificate issued
by Dr. Sheela M. Rathod supports the case of the plaintiffs that on
06.01.2020, the son of plaintiff No.2 was under medical treatment with
Dr. Sheela Rathod. It is not in dispute that subsequent to the passing of
order of dismissal of the suit, the plaintiffs appeared in the Court, but it
was too late. This conduct of the plaintiffs is sufficient to show that
they are diligent and willing to proceed with the suit.
7. It is admitted that initially the suit was dismissed for
default and was restored by my learned Predecessor directing the
plaintiffs to pay costs of Rs.10,000/ to the defendants. The order was
passed in particular facts and circumstances in which the suit came to
be dismissed on 03.08.2013. However, the facts and the circumstances,
which are existing at the time of this dismissal are different and reason
appears to be much genuine. However, at the same time, to balance the
equity, this Court has to consider that the suit is delayed at the instance
of the plaintiffs only. They could not have better managed the time and
appeared before the Court for crossexamination. This conducts makes
the plaintiffs liable to pay costs and I proceed to pass following order:
O R D E R
1. Notice of Motion No. 352 of 2020 is allowed
subject to the payment of cost of Rs.1,000/ by the
plaintiffs to the defendants jointly.
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2. The Suit No.4490/2010 be restored to its original
stage on payment of cost by the plaintiffs to the
defendants.
3. Notice of Motion No.352 of 2020 stands disposed
of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 26.08.2021 Gr.Mumbai.
Dictated on: 26.08.2021
Typed on : 26.08.2021
Signed on : 26.08.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27.08.2021 AT 5.40 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
26/08/2021
Judgment/Order signed by P.O. on 26/08/2021
Judgment/Order uploaded on 27/08/2021
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