Final Order 1

Order Details: Notice of Motion
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MHCC010010862019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.422 OF 2019
(CNR NO.MHCC01-001086-2019)
IN
S.C. SUIT NO.854 OF 2018 (DISP. OF)
Satyendra Kumar Shanti Swaroop Mahesh ….Plaintiff.
V/s.
Municipal Corporation of Greater Mumbai & Anr. ...Defendants.
Appearance :
Adv. Pawan Tiwari for plaintiff.
Adv. Ruhi Hajare for defendant No.1/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. R.V. BHAKTA
(COURT ROOM NO.06)
DATE : 25th September, 2025.
ORAL ORDER
This is the Notice of Motion taken by the plaintiff for setting aside
the order dated 03.12.2018 and restore the Suit to its file.
2. The plaintiff averred that, the present matter was kept for service
report on 03.12.2018. His advocate in some urgent circumstances went
to his native place in Uttar Pradesh on 30.11.2018 and returned back
on 08.12.2018, therefore he could not attend the present matter. The
plaintiff further added that, the present matter appeared on board on
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03.12.2018 for service report and since his advocate was not present,
this Court dismissed the present Suit for non prosecution. Since Writ of
Summons could not be served, therefore defence of defendants could
not come on record. Absence of his advocate was not intentional and
only due to bonafide mistake he could not appear in the present matter.
Since the present Suit can not be proceeded and there is balance of
convenience heavily tilts in his favour as he has invested his hard
earned money in the suit premises. If reliefs prayed in the present
Notice of Motion are not granted, he has to suffer irreparable loss, harm
and injury which can not be compensated in terms of money. No loss or
prejudice would be caused to the defendants if the present Notice of
Motion be allowed. Hence, prayed to allow this Notice of Motion.
3. The defendant No.1 / BMC submitted that, the present Suit was
dismissed on 08.12.2018 for non prosecution by this Court. The present
application for restoration was made by the plaintiff after lapse of
period of limitation and also the plaintiff has not mentioned sufficient
reasons as to why he and his advocate did not remain present before
this Court on 08.12.2018, as the matter was fixed for service of
summons. Also, plaintiff failed to mention reasons for condonation of
delay for filing the present application before this Court. In view of
above prayed that the present Notice of Motion is liable to be dismissed.
4. The defendant No.2 submitted that, the plaintiff has failed to
serve the Writ of Summons in the stipulated period as per the provisions
of Civil Procedure Code and further extension has not been sought after
making any attempt to serve the Writ of Summons for serving the Writ
of Summons and simple adjournment sought for serving the Writ of
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Summons and grounds sought for restoration in the above Notice of
Motion is vague and that the present Notice of Motion deserves to be
dismissed with compensatory costs. There is no concrete explanation is
given as in case if advocate was out of station then the plaintiff could
have appeared and on perusing the roznama of 03.12.2018 the plaintiff
was also not present. The defendant No.2 further submitted that, above
Suit was dismissed on 03.12.2018 and Notice of Motion was filed on
29.01.2019 clearly shows that the delay is calculated wrongly that there
is delay of 20 days. There is no averment in respect of the delay as in
the affidavit as in the prayer. The plaintiff has himself made false
statement on oath and has not come with clean hands before this Court
and therefore, the plaintiff is not entitled to seek any reliefs as prayed in
the Notice of Motion and the same be dismissed with compensatory
costs.
5. I have gone through the Notice of Motion, say and heard both
sides. In my view, it is necessary to mention here that the parties are not
suffer due to the negligent act or mistake of the lawyer. Therefore, for
the ends of justice and to decide the real controversies between the
parties, if this Suit is restored then it will not cause any prejudice to
either parties, rather it will serve ends of justice. Hence, following
order:
ORDER
1. The Notice of Motion No.422 of 2019 is allowed and disposed of,
accordingly.
2. The plaintiff is hereby directed to pay cost of Rs.10,000/- to the
defendant No.2.
3. The plaintiff has to pay this cost to the defendant No.2 within one
month and the Suit will not be restored unless and until the cost
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has to be paid to the defendant No.2.
4. The Registrar is hereby directed to restore this Suit only after the
payment of cost to the defendant No.2 by the plaintiff.
(R.V. BHAKTA)
Judge,
City Civil Court,
Date: 25.09.2025 Gr. Bombay.
Dictated on : 25.09.2025
Signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25/09/2025 at 05.30 p.m. N.S. Bakre
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ SHRI. R.V. BHAKTA
(C.R.NO.06)
Date of pronouncement of Judgment/
Order
25.09.2025
Judgment/Order signed by P.O. on 25.09.2025
Judgment/Order uploaded on 25.09.2025
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