Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010011302019
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.445 OF 2019
IN
S.C. SUIT NO.6625 OF 2004
SMT. SNEHA MILIND KHANOLKAR ]… Plaintiff
V/s.
BDH INDUSTRIES LTD. ]... Defendants
Appearances :-
Ms. Snehal, Ld. Adv. for plaintiff.
Mr. K.K. Maheshwari, Ld. Adv. for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 3rd March, 2020
ORAL ORDER
1. Plaintiff took out this Notice of Motion for setting aside
Order of dismissal of suit dated 15.12.2018 and for restoration of suit.
2. Perused the Notice of Motion, affidavit in support of Notice
of Motion, reply of defendants and rejoinder of plaintiff. Heard both
sides.
MHCC01-001130-2019
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3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether Order of dismissal of suit
dated 15.12.2018 for want of
prosecution can be set aside?
In the affirmative.
2. Whether suiti can be restored ? In the affirmative.
3 What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of the plaintiff that plaintiff filed
evidence on 26.11.2014. Cross-examination of the plaintiff was over by
the defendants. Thereafter, defendants filed evidence affidavit dated
25.01.2018 being Exh.39. It seems that the Court has given some
directions in the Month of October, 2018 to make allegations in the
compilation of documents filed by the plaintiff, though the cross-
examination of the plaintiff's witness No.1 was over on 17.12.2017.
The Jr. Advocate appearing for the plaintiff was under impression that
the cross-examination of PW 1 was over therefore, the compilation of
documents must have been set right. However, advocate for defendant
in absence of plaintiff made grievances and on 15.10.2018 some
directions were given to rectify the Index of the compilation of
documents and the paging.
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5. It is further contention of the plaintiff that rectification of
the Index to the compilation of the documents of the plaintiff remained
to be done on a bonafide impression. The matter was for cross-
examination of defendant's witness No.1 on 15.12.2018. D.W. 1 was
not present on last two occassions prior to 15.12.2018. The then
Presiding Officer of this Court going back on Roznama dated
11.10.2018 dismissed the suit for default on 15.12.2018. There seems
some confusion. On 15.12.2018 plaintiff as well as Advocate of plaintiff
were not present before the Court. Therefore, the Notice of Motion be
allowed as prayed for.
6. In brief, it is contention of the defendant that a Notice of
Motion is barred by law of limitation. The matter was for cross-
examination of DW 1 on 16.03.2018, 11.04.2018, 13.06.2018,
17.07.2018, 28.08.2018, 11.10.2018, 13.10.2018 and finally on
15.12.2018. Plaintiff did not remain present on the said dates. On
several occassions advocate for plaintiff remained absent. On
13.11.2018 the Court had directed defendant's advocate to keep the
witness present on 15.12.2018. Defendant's witness did not remain
present on 15.12.2018. Plaintiff and advocate of plaintiff both were
absent on 15.12.2018. The matter was kept back till 5.00 p.m. and
lastly it is dismissed for default on 15.12.2018. All the other adverse
contentions are denied.
7. In brief, it is contention of the plaintiff in rejoinder that she
reiterates contentions raised in the Notice of Motion and denies
contentions raised in the reply.
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8. Perused record. Cross-examination of PW 1 is completed
on 17.11.2017. Plaintiff filed evidence closed pursis on 30.11.2017
vide Exh.38. Thereafter, matter adjourned for evidence of defendants
on 13.12.2017. On 11.04.2018 defendant filed evidence affidavit of
DW 1 vide Exh.39. On 11.04.2018 plaintiff's advocate are present.
9. Perused Roznama dated 15.12.2018. It is mentioned in the
said Roznama that plaintiff failed to comply with the directions issued
on 11.10.2018 for proper indexing the compilation to be tendered on
record. Therefore, the suit dismissed under Order 39 Rule 11 of the
Code of Civil Procedure. Due to non compliance of directions dated
11.10.2018.
10. Perused Roznama dated 11.10.2018. No directions are
given in the Roznama dated 11.10.2018 for a proper indexing and
compilation of documents. Cross-examination of PW 1 is already over
on 17.11.2017. D.W.1 filed defendant evidence affidavit on 11.04.2018.
11. Perused Order 9 Rule 3 of the Code of Civil Procedure. As
per the said Rule where neither party appears when the suit is called on
for hearing, the Court may make an order that the suit be dismissed.
12. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his non-appearance, as the
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case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
13. Perused Roznama dated 11.10.2018. On that date D.W.1
was absent. Matter posted for cross-examination of D.W.1 on
13.11.2018. On 13.11.2018 both the parties and their counsel absent.
D.W.1 was absent. The matter posted for dismissal in default order on
15.12.2018. After going through the record, it appears that there was
no order dated 11.10.2018 for a proper indexing the compilation of
documents of the plaintiff. Therefore, I am of the opinion that the order
of dismissal of suit dated 15.12.2018 can be set aside. Hence, I record
my findings to point Nos.1 and 2 in the affirmative and point No.3 the
Notice of Motion is allowed as per final order. Hence following order:
ORDER
Notice of Motion 445/19 is allowed as under :
1. Order of Dismissal of suit dtd. 15/12/2018 is hereby set
aside.
2. The suit is restored.
3. Matter be posted for Cross examination of D.W. 1 on
08/04/2020 at 11.00 a.m.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 03/03/2020 City Civil Court, Gr. MUMBAI
Dictated on0 : 03/03/2020.
Transcribed on : 11/03/2020.
Checked on : 16/03/2020.
Signed on : 16/03/2020.
( SHANKAR G. BORLEPWAR )
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Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
Due to Covid-19 lockdown, the
Court was not functioning and
therefore uploaded on
12.06.2020 at 4.40 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 03.03.2020
Judgment/order signed by P.O. on 16.03.2020
Judgment/order uploaded on 12.06.2020
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