Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 346 OF 2020
IN
S.C. SUIT NO. 2961 OF 2015
Pralhad Prasad Sharma ].. Plaintiff.
V/s.
The Union of India and ]
Another. ]..Defendants
Advocate Mr. D.B. Patil for plaintiff.
None for the defendants.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 18th JUNE 2022
ORAL ORDER
This Notice of Motion has been taken out by the plaintiff
for restoration of the suit by setting aside dismissal order passed on
10.10.2019 and permitted him to file his oral evidence on affidavit in
the suit in support of his suit claim.
2 In support of notice of motion, the plaintiff has filed his
affidavit, wherein it is averred that in view of pleadings by both the
sides, issues have been framed and settled at Exhibit-4 on 16.04.2019
by my predecessor and matter was adjourned for filing his evidence.
Thereafter, in May 2019, due to some untold events which took place at
his native place, he had been to native place upto October end of 2019.
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2
Therefore, he could not approach his advocate between May to October
2019. On 20.10.2019, he received message from his advocate about
dismissal of the suit on 10.10.2019 due to non-filing of his oral
evidence. Therefore, he returned back from his native place.
3. It is further averred that delay and lapses occurred on his
part for not filing his evidence between 23.07.2019 till 10.10.2019 due
to unavoidable departure to his native place. Non-filing of his evidence
is occurred not because of his negligence and carelessness. Hence, not
filing his evidence on 23/07/2019, 27/09/2019 and 10/10/2019 is
required to be considered. Thus, prayed for allowing notice of motion.
3. The defendants failed to file reply to the Notice of Motion.
4. Heard the learned advocate for the plaintiff.
5. Considering the Notice of Motion and documents on
record, following points arise for my determination and my findings to
them are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has proved sufficient
cause for restoration of the suit ?
In the
Affirmative
2 What order? As per final order
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R E A S O N S
AS TO POINT NOS.1 AND 2 :
6. Perused Notice of Motion and roznama. It appears from
the roznama that the suit came to be dismissed on 10/10/2019, as the
plaintiff and his advocate absent on 23/07/2019, 27/09/2019 and
10/10/2019 and failed to adduce evidence. The Notice of Motion came
to be filed on 09/12/2019. Therefore, it is appearing that the Notice of
Motion is filed immediately after the dismissal of the suit. Plaintiff has
explained that he had gone to his native place for some property
dispute.
7. Defendant has not filed reply to the present Notice of
Motion and therefore, the contentions of Plaintiff in the Notice of
Motion have gone unchallenged. In the circumstances, I have come to
the conclusion that the Notice of Motion can be allowed subject to
payment of cost due to the negligence which is shown by the Plaintiff.
Accordingly, I answer point No. 1 in the affirmative and in answer to
point No.2, proceed to pass following order.
ORDER
1. Notice of Motion No. 346 of 2020 is allowed subject to
payment of costs Rs. 3,000/- to be paid by the Plaintiff
to each of the defendants.
2. Order of dismissal of the suit passed on 10/10/2019 be
set aside and Suit No. 2961 of 2015 be restored to its
original stage and he is permitted to file his evidence on
record after payment of costs by the Plaintiff as above.
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3. Plaintiff shall bear the costs of this Notice of Motion.
4. Notice of Motion No. 346 of 2020 is disposed of
accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 18/06/2022 Gr. Bombay.
Dictated on : 18/06/2022
Transcribed on : 18/06/2022
Signed on : 18/06/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/06/2022 At 04.00 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
18.06.2022
Judgment/Order signed by P.O. on 18.06.2022
Judgment/Order uploaded on 18.06.2022
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