Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 412/19(Suit 8707/92)
MHCC010010742019
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 412/2019
IN
S.C. SUIT NO.8707/1992
Rajendraprasad Mewalal Gupta ..Plaintiff
V/s.
1. Mrs K. Shivram Shetty
2. K. Diwakar Shetty
3. Raviraj Kedurannappa Shetty
4. Hirasingh Kiritisingh Rajput ..Defendants
Appearance:-
Adv. Mr. Himanshu Gupta for plaintiff.
None for the defendants.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 4.3.2020.
ORAL ORDER
1. Perused Notice of Motion supported by an affidavit of Mr.
Rajendraprasad Gupta (plaintiff in the suit). This Motion is taken out by
the plaintiff for setting aside order of dismissal of the Suit in default and
for restoration of the same, in the interest of justice.
2. I have perused the supporting affidavit and written notes of
arguments filed on behalf of the plaintiff.
3. It is submitted on behalf of the plaintiff that, the plaintiff
had filed the suit against defendants for compensation and other reliefs.
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It is submitted that, on 11.4.2014, the suit was dismissed in default but
this fact was not informed by the Counsel for the plaintiff to him.
Therefore, he had no knowledge of the same. On getting information on
15.9.2018, the plaintiff had applied for certified copy of the Roznama
and received the same and came to know that, the suit was dismissed in
default by the court in absence of his Counsel before the court. It is
submitted that, if the present Motion is allowed, it will give an
opportunity to the plaintiff to proceed with the suit and it will not cause
any prejudice to the defendants as they will get opportunity to contest
the same. Hence, the notice of motion may be allowed.
4. Inspite of service, the defendants have failed to turn up
before the court as per affidavit of service filed on record by the
plaintiff. It can be seen from the Roznama dated 11.4.2014 that, the
suit was dismissed in default after framing of issues and at the stage
when it was for recording of evidence, the plaintiff and defendants were
not present and orders were passed by this court. This is not a stage
where suit can be dismissed in default. It could have been dismissed for
want of prosecution. The present Motion is taken out by the plaintiff on
14.1.2019 for setting aside the dismissal. Affidavit of service was filed
by the plaintiff on 20.7.2019. Affidavit in reply not filed by the
defendants inspite of service.
5. Under the above circumstances, the contentions of the
plaintiff in the supporting affidavit of the Motion have gone
unchallenged. The only aspect that is required to be considered by this
court is that, from the year 2014 till the year 2019 no action was taken
by the plaintiff. According to him, he did not get information of the
order of dismissal of the suit in default from his advocate. It is a settled
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legal position that, a litigant should not suffer for the lapses on the part
of his advocate. However, considering the aspect of substantial delay in
taking out the notice of motion, I am of the opinion that it will be just
and proper to impose reasonable costs on the plaintiff while restoring
the Suit. Hence, I proceed to pass following order :-
ORDER
1. Notice of Motion No.412/2019 is hereby allowed subject
to plaintiff depositing costs of Rs.5000/- in the office of
DLSA, Mumbai within a period of four weeks from
today.
2. If the above direction is complied with by the plaintiff
within time then the order of dismissal in default passed
by the court dated 11.4.2014 shall stands set aside and
the suit shall be restored to the file.
3. If the above order is complied with by the plaintiff and
costs are paid on restoration of the suit, notice shall be
issued to the defendants for their appearance.
Notice of Motion is disposed of accordingly.
(V.V. Vidwans)
Date: 4.3.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 4.3.2020
Transcribed on : 4.3.2020
Signed by HHJ on : 5.3.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 6.3.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 4.3.2020
Judgment/ order signed by P.O on 5.3.2020
Judgment/ order uploaded on 6.3.2020
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