Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M No.421/2020 in Suit No.2436/2019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 421 OF 2020
IN
L. C. SUIT NO. 2436 OF 2019
1 Shaikh Abdulla Ibrahim Shaikh ]
and three others. ]..Plaintiffs.
V/s.
1 The Municipal Corporation of Greater ]
Mumbai (MCGM), and eight others. ]..Defendants.
Advocate Mr. M.V. Holamagi for the plaintiffs.
Advocate Mr. Pradeep J. Ramchandani for the defendant no.4.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 12th MARCH, 2020
ORAL ORDER
This notice of motion is taken out by the plaintiff no.3
praying to set aside no reply order passed against the plaintiffs on
19.09.2019 and now they want to file reply to the Notice of Motion
No.2633/2019 which was taken out by the defendant no.4.
2 According to the plaintiffs, their learned advocate had
prepared to draft and file reply on 19.09.2019. However, no reply order
was passed on that day. On subsequent date i.e. on 19.11.2019, the
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2 N.M No.421/2020 in Suit No.2436/2019
reply was tried to be filed, but because of no reply order, it could not be
filed on that date. The matter was then adjourned to 17.10.2019.
However, on that date, the Presiding Officer of the Court was on leave.
Therefore, the matter was adjourned to 19.11.2019 and then to
11.12.2019. The plaintiffs took out the matter on board on 27.11.2019
and tried to file reply, but the same was not taken on record and it was
refused to be accepted. The plaintiffs therefore, prays that in the
interest of justice, no reply order be set aside and the plaintiffs be
allowed to file their reply on Notice of Motion of the defendant no.4.
3 The defendant no.4 has resisted this Notice of Motion inter-
alia contending that there is absolutely no ground mentioned in the
Notice of Motion as to why there was delay in filing reply within time or
even taking out this notice of motion even after passing no reply order .
The plaintiffs are taking the Court as granted and are moving the Court
as per their choice which is not in accordance with law. He therefore,
prays that this Notice of Motion which lacks explanation of delay, is
liable to be dismissed.
4 Heard the learned advocate Mr. M.V. Holamagi for the
plaintiffs. He tried to appraise the Court with the cause of the lis which
is beyond scope of this Notice of Motion. He was heard to his
satisfaction. Coming to the point, he referred the roznama and
submitted about the dates fixed in the matter, no reply order and taking
out this notice of motion to get it set aside. Admittedly, no reply order
was passed against the plaintiffs on 19.09.2019 and the matter was
then adjourned to 17.10.2019. If the reply was to be filed, it ought to
have been filed on the fixed date or atleast precaution ought to have
been taken to file it when no reply order passed and the matter is
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3 N.M No.421/2020 in Suit No.2436/2019
ordered to be proceeded without reply. No steps were taken on
17.10.2019. The explanation for this is given that the Presiding Officer
of the Court was on leave. This explanation does not convince the
Court as the same could not have prevented the plaintiffs from filing
reply on record. Be it as may be, the matter was adjourned to
11.12.2019. The reply ought to have been filed on that date. However,
the matter was taken on board by precipee on 27.11.2019 and reply
was sought to be tendered. Obviously, as no reply order was already
passed, reply was not taken on record and was not accepted. The
plaintiffs have thereafter, filed this Notice of Motion on 21.01.2020.
The attempt on behalf of the plaintiffs to take the matter in between
and to file reply directly when there was no reply order does not reflect
sound practice on the part of the learned advocate for the plaintiffs.
5 However, considering the fact that the party shall not suffer
for inaction or negligence of an advocate representing them, though I
find that there are no proper explanations given for delay in filing reply
or even for filing this Notice of Motion, since the plaintiffs have came
before the Court with some cause, it would be in the interest of justice
to allow the plaintiffs to file their reply on record, so that Notice of
Motion taken by the defendant no.4 can be decided on its merit.
Because of the same reason, I refrain from imposing the cost on the
plaintiffs. Hence, the order.
ORDER
Notice of Motion No.421 of 2020 is made absolute and no
reply order passed against the plaintiff on 19.09.2019 is set aside and
their reply to Notice of Motion No.2633/2019 is allowed to be taken on
record, provided the same is filed today.
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4 N.M No.421/2020 in Suit No.2436/2019
2 Notice of Motion No.421 of 2020 stands disposed of
accordingly.
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: 12/03/2020. Gr. Bombay.
Dictated on : 12/03/2020
Transcribed on : 13/03/2020
Signed on : 13/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/03/2020 At 01.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
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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