Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM 41719 in LC SU 323513
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.417 OF 2019
(CNR No.MHCC010010832019)
IN
L.C. SUIT NO.3235 OF 2013.
(CNR No.MHCC010039922013)
Prafukumar Gaurang Mohanty }...PLAINTIFF.
Versus
Pankajbhai Motilal Darji & Ors. }...DEFENDANTS.
Shri.Kudalkar, learned advocate for the plaintiff.
Shri.Kamlesh Mali, learned advocate for defendant No.1 & 2.
Smt.Savita Ganu, learned advocate for defendant No.3.
Smt.Prabhu, learned advocate for defendant No.4.
CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 01/03/2019)
1. This Notice of Motion is taken out by the plaintiff for
seeking relief to restore L.C. Suit No.3235/2013 by setting aside order
dtd.21/07/2018 & by condoning the delay of 183 days caused in filing
this Notice of Motion. Read the affidavit filed in support of the Notice of
Motion, reply filed by the defendants and rejoinder filed by the plaintiff.
Heard learned Shri.Kudalkar advocate for the plaintiff, learned Shri.
Kamlesh Mali, advocate for defendant Nos.1 & 2, learned Smt.Savita
Ganu, advocate for defendant No.3 and learned Smt.Prabhu, advocate
for defendant No.4. Perused the entire record.
2. Learned advocate for the plaintiff argued that plaintiff was
suffering from cardiac problem and certain other physical ailments,
plaintiff has undergone open heart surgery & plaintiff's toe of leg has
been removed by performing operation. He further argued that plaintiff
was also required to take treatment for both the eyes, plaintiff is
medically not fit since year 2016 and plaintiff was required to attend
various hospitals for treatment. He further argued that wife of plaintiff
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is also suffering from breast cancer and various other illnesses since
year 2013. He argued that on account of plaintiff's own ailments &
ailment of plaintiff's wife, plaintiff could not contact his advocate for
making inquiry about the status of the suit & this court has dismissed
the suit in default as per order dtd.21/07/2018. He argued that there
was no intentional fault on the part of the plaintiff in not attending the
court when the suit was called on for hearing hence, it is necessary to
restore the suit by condoning the delay caused in filing this Notice of
Motion for restoration of the suit. He argued that it was the duty of
plaintiff's advocate to intimate the plaintiff the date fixed in the suit for
evidence which was not done by the said advocate and plaintiff cannot
be made suffer due to fault of the advocate engaged by him. In support
of his argument, learned advocate for plaintiff has placed reliance on
the observations of Hon'ble Bombay High Court in a case of Ashok
Rawaji Vs. Municipal Corporation reported in 2003(4) Bom.C.R.28. I
have gone through the said authority.
3. As against this, learned advocate for defendant Nos.1 & 2
argued that this court had given sufficient opportunities to the plaintiff
to adduce evidence after framing of issues but as plaintiff had failed to
lead evidence, this court has rightly dismissed the suit in default. He
argued that medical papers produced by the plaintiff are not sufficient
to show that plaintiff was unable to attend the court when the suit was
called on for hearing, plaintiff has not offered any explanation for his
absence & for explaining the delay caused in filing this Notice of Motion
due to which, Notice of Motion is liable to be rejected.
4. Learned advocate for the defendant No.3 argued that
plaintiff had not attended the court on 6 dates, absolutely no cogent
reason is mentioned in the affidavit for explaining the absence of
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plaintiff before the court and his failure to adduce evidence, the copies
of medical papers produced by the plaintiff are not helpful to the
plaintiff for accepting his prayer, different age of plaintiff is mentioned
in the different medical papers produced by the plaintiff about which,
no explanation is given by the plaintiff. She further argued that
development process of the suit property is stalled due to the plaintiff
only. She argued that though party cannot be made to suffer due to the
fault of the advocate, it is equally essential for the party concerned to be
diligent as far as the progress of the suit is concerned but plaintiff was
not diligent hence, the suit is dismissed in default. She argued that
proper reason is not given for showing absence of plaintiff's advocate
before the court when the suit was fixed for evidence of plaintiff. She
argued that MHADA has passed order dtd.5/9/2018 under Sec.95(A) of
MHADA Act and thereafter, plaintiff has taken out this Notice of Motion
with ulterior motive of delaying said action hence, Notice of Motion is
liable to be rejected with costs.
5. Learned advocate for defendant No.4 argued that
documents produced by plaintiff are not sufficient for accepting the
contentions raised by the plaintiff about the absence of plaintiff before
court when suit was fixed for evidence of plaintiff. She argued that only
after taking of action under Section 95(A) of MHADA Act by defendant
No.4, plaintiff has taken out this Notice of Motion which is liable to be
rejected as the suit is dismissed in default after giving sufficient
opportunities to the plaintiff.
6. It is not in dispute that suit is dismissed in default for want
of prosecution as per order dtd.21/07/2018 as plaintiff had failed to
lead evidence which means that suit is dismissed by invoking the
provisions of Order 9 Rule 8 of CPC. Learned advocates for defendants
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have submitted that plaintiff had not attended the court on seven dates.
Having gone through the Roznama, I found substance in their said
argument as it is mentioned in Roznamas recorded in the suit that
nobody had attended the court in the suit on 23/02/2017, 29/04/2017,
19/08/2017, 18/11/2017, 17/02/2018, 28/06/2018 and 21/07/2018.
However, I would say that presence of plaintiff was not essential before
the court on the dates before 28/06/2018 as Roznama shows that it was
the first date fixed in the matter for evidence of the plaintiff after
framing of issues on 17/02/2018 due to which, any importance cannot
be given to the absence of the plaintiff on the earlier five dates as suit
was not called on for hearing till then. The questions for consideration
are whether plaintiff has produced sufficient material to show that he
was precluded by sufficient cause from remaining present before the
court when the suit was called on for hearing & to explain the delay
caused in filing this Notice of Motion?
7. Admittedly, there is delay of 183 days in filing the Notice of
Motion for restoration of suit. The copies of medical papers produced by
the plaintiff are issued by the concerned hospitals in the name of the
plaintiff which contain the discharge summary of January2016, other
medical papers & bill prepared by Hospital in year2016. Those medical
papers are sufficient for accepting the contentions of plaintiff that
plaintiff was hospitalized in year 2016 for cardiac problem & for high
blood pressure & small toe of his right foot is amputated.
8. Plaintiff has also produced discharge summary of Jaslok
Hospital which has supported his contention that he was required to
take medical treatment in December2017 for eye problem. Copies of
medical papers issued by Smt.Motiben Dalbir Hospital, Bhatia Hospital
& Tata Memorial Hospital have supported the contentions of the
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plaintiff that his wife was required to be hospitalized for breast cancer
for a period from year2013 to year2017. Not only that, the discharge
summary of Jaslok Hospital and other medical papers produced by the
plaintiff have supported his contentions about his taking treatment in
year2018. Apparently, the contentions raised by plaintiff about his
medical discomforts have been supported by the copies of medical
papers produced by him.
9. Indeed, different age of the plaintiff is mentioned in the
different medical papers produced by the plaintiff, as is argued by
learned advocate for defendant No.3 and the difference in mentioning
the age of plaintiff appears to be quite significant as age of plaintiff is
mentioned as 49 years in discharge summary dtd.08/09/2018 whereas,
his age is mentioned as 65 years in discharge summary dtd.08/8/2018.
Likewise, his age is mentioned as 60 years in discharge summary issued
on 13/04/2016 and as 53/54 years in the discharge summaries issued
on 04/04/2017, 07/08/2016, 14/12/2017. However, those discharge
summaries are not issued by same hospital hence, the very fact that
different age of plaintiff is mentioned in discharge summaries issued by
the different hospitals is not required to be given any importance and it
is not a sufficient for disbelieving the copies of medical papers produced
by the plaintiff.
10. As mentioned earlier, presence of the plaintiff was essential
before the court only after framing of Issues when the suit was called on
for hearing as the order makes it clear that it is dismissed in default
under Order 9 Rule 8 of CPC. Plaintiff has produced sufficient medical
record to show that he was required to take treatment for various
ailments including cardiac problem at least since year 2016. Not only
that, copies of medical papers produced by the plaintiff are sufficient for
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accepting that his wife has been detected to be a patient of breast
cancer since year 2013. Considering those things, I have no hesitation
in accepting the contention of plaintiff that he was prevented by
sufficient cause to attend court when the suit was fixed for his evidence.
11. Again, the copies of medical papers produced by the
plaintiff are sufficient for accepting that plaintiff was required to take
treatment for non healing ulcer over left middle toe for one month
before his causing admission in Jaslok Hospital on 21/8/2018. The
discharge summary of Zen Hospital shows that plaintiff was admitted in
the said hospital on 09/08/2018 and was discharged on the same date.
Considering the averment in discharge summaries of Jaslok Hospital
about plaintiff's suffering from non healing ulcer since last one month of
his causing admission in the said hospital on 21/08/2018, it is sufficient
for accepting that the plaintiff was prevented from attending the court
on 21/07/2018 due to his physical disability.
12. It is well settled that prayer for condonation of delay shall
be accepted liberally. The medical papers produced by the plaintiff are
sufficient for accepting that delay has caused in filing this Notice of
Motion due to the health problems of the plaintiff and it does not
appear that there is intentional delay in filing the Notice of Motion
hence, I hold that plaintiff is entitled for the reliefs claimed. The fact
that defendant/MHADA has initiated action under Section 95(A) of
MHADA Act is not sufficient for rejecting the prayer made in this Notice
of Motion. Though there is substance in the argument of learned
advocates for defendants that it was essential for the plaintiff to keep
track of the suit & he was required to contact his advocate by himself &
it was not the sole responsibility of the advocate engaged by the
plaintiff to attend the matter but the fact that plaintiff has produced
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sufficient material to show his inability to contact his advocate due to
his health problems, it is not essential to give much of importance to the
contentions raised by the plaintiff about that his advocate had not
intimated him the progress of the suit. Defendants will get opportunity
to contest the suit by crossexamining the plaintiff and his witnesses so
also they will get opportunity to lead evidence on their behalf and
hence, there is no scope of causing any prejudice to the defendants if
the Notice of Motion is allowed by imposing certain costs on the
plaintiff. Thus, an order.
O R D E R
Notice of Motion No.417 of 2019 is allowed in terms of
prayer clauses (a) & (b)subject to cost of Rs.10,000/ (Rupees
Ten Thousand only).
Plaintiff shall deposit the amount of cost as mentioned
above on or before 15/03/2019 failing which, this Notice of
Motion shall be deemed to have been rejected.
If the amount of cost is deposited as mentioned above, Suit
No.3235 of 2013 shall stand restored and it shall be taken up for
hearing on 18/03/2019. Notice of said date is given to the
advocates for both the parties.
The amount of cost if deposited as above, it shall be
apportioned equally amongst the defendants.
Date: 01/03/2019 (P.P.RAJVAIDYA)
Direct dictated on : 01/03/2019. Judge, C.R.No.12,
Checked on : 02/03/2019. City Civil Court,
Signed on : 02/03/2019. Gr. Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
02.03.2019 at 12.45 p.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 01/03/2019
Order signed by P.O. on 02/03/2019
Order uploaded on 02/03/2019
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