Final Order 1

Order Details: Notice of Motion
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MHCC010008762019
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 178 OF 2019
IN
S.C. SUIT NO. 3902 OF 2010
1. Simon J.Patro & Anr. )...Plaintiffs.
V/s.
Harishree Enterprises & Ors. )...Defendants.
Appearance:-
Ld. advocate Mr. Jadhav for plaintiffs.
Ld.advocate Mr.M. P. Mishra for defendant nos. 2 and 3(b).
Ld.advocate Mr.A.K.Shukla for defendant nos. 3(c) and 3(d).
CORAM: HIS HONOUR JUDGE
SHRI R.V. KOKARE
DATE : 12/03/2020(C.R.No.31)
ORDER
This is a notice motion taken out by the defendant nos. 2
and 3(b) for dismissal of the suit in view of Order IX of Civil
Procedure Code 1908. This notice of motion resisted on behalf of
the plaintiffs by filing their reply. Read the present notice of
motion, reply of the plaintiff thereon. Heard both the learned
counsels on behalf of both the sides at length. Perused the record.
2. The learned counsel on behalf of the defendant nos. 2 and
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3(b) has submitted that the present suit came to be filed by the
plaintiffs for Specific Performance of Agreement in the year 2010
before the Hon’ble Bombay High Court. During pending of the
suit, the original defendant no.3 Ramanlal Desai is died.
Thereafter, the plaintiffs took out the legal heirs of the deceased
defendant no.3. The present defendant no.3(b) Sailen Ramanlal
Desai is one of the legal heirs of deceased defendant no.3. The suit
summons and copy of plaint were not served on these defendants.
Therefore, the present suit is liable to be dismissed in view of
Order IX of Civil Procedure Code.
3. The learned counsel on behalf of the plaintiffs has argued
that the plaintiffs have been filed the suit against the defendants
before the Hon’ble Bombay High Court on 05/05/2010. The suit
was registered on 22/06/2010. Thereafter, the plaintiffs took out
notice of motion bearing no. 1648/2010 for interim reliefs dated
24/06/2010. After registration of the notice of motion, the
summons alongwith copies of plaint and its enclosures were
served on the defendants. Thereafter, on 26/07/2010 and
10/08/2010, summons were applied for. On 22/11/2010, the
present defendants i.e. defendant no.2 and 3(b) and one another
defendant 3(a) have been appeared to their advocate Mr.M.P.Vashi
Associates. The defendants have not made any objection for
service of writ of summons on them while they were appeared on
22/11/2010.
4. The learned counsel on behalf of the plaintiffs has relied on
judgment reported in 2005(5) Bom.C.R.842 ( Bombay High
Court) Vijaykumar Ramrang Chaudhar V/s. D.K.Soonawalla &
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another. The Hon’ble Bombay High Court has held that “ Under
Rule 84 of the High Court (Original Side) Rules filing of
Vakalatnama is itself sufficient to show that summons are duly
served and/or in any way, the said requirement stands dispensed
with. No provision for engaging an Advocate in respect of each
and every interim proceeding separately. Objection of non-service
of summons is rejected.”
5. The learned counsel on behalf of the plaintiffs has relied on
another judgment reported in 2011 DGLS(Bom.)9 (Bombay High
Court) Meena Ramesh Lulla and Others Vs.Omprakash A.Alreja
and Others. The Hon’ble Bombay High Court has held that “ A suit
may be dismissed or want of service of the writ of summons under
Order IX Rule 2 of the CPC.”
6. On perusal of the record, it appears to me that on
05/05/2010, the plaintiffs have filed suit before the Hon’ble
Bombay High Court and on 22/06/2010, the suit was registered.
On 24/06/2010, plaintiffs took out notice of motion bearing no.
1648/2010 for interim reliefs. After registration of the notice of
motion, the same along with the copies of plaint and its enclosures
were served on the defendants. On 26/07/2010 and 10/08/2010,
summons were applied for and thereafter, on 22/11/2010,
vakalatnama filed by advocate Mr.M.P. Vashi Associates on behalf
of defendant nos.2, 3(a) and 3(b). It means the writ of summons
and copies of the plaint were duly served on these defendants i.e.
on defendant nos. 2 and 3(b).
7. I have gone through the above citations. It seems that the
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ratio held in above citations are not applicable to the present case
in my hand in favour of the plaintiffs due to defers of facts and
circumstances. Therefore, the present notice of motion is liable to
be dismissed. Hence, I proceed to pass following order.
ORDER
Notice of motion no. 178/19 is hereby dismissed.
(R.V.Kokare)
Judge,
Date : 12/03/2020 City Civil Court, Gr. Bombay.
Dictated on: 12/03/2020
Transcribed on:13/03/2020
Signed by HHJ:13/03/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
13/03/2020 5.00p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V. Kokare(CR No.31)
Date of Pronouncement of
Judgment/Order
12/03/2020
Judgment/order signed by P.O on 13/03/2020
Judgment/order uploaded on 13/03/2020
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