Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 453 of 2019 in Suit no. 7283 of 1996
MHCC010011362019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.453 OF 2019
IN
SUIT NO. 7283 OF 1996
IN
(HIGH COURT SUMMARY SUIT NO.107 OF 1996)
Mr. Ashok Bhanvarlal Jain ...Plaintiff
V/s
Messrs Umesh Basudeo Dharnidharka ...Defendant.
CORAM : HIS HONOUR JUDGE
SHRI R.R. PATARE
(COURT ROOM NO. 01)
DATE : 29thDAY OF APRIL, 2024
-: Appearances:-
Adv. Vijay Vaghela for the plaintiff
Adv. Ankit Tripathi for defendant
ORAL ORDER
Perused pleadings and heard both the Advocates for the
parties. This notice of motion is taken out by the plaintiff for
condonation of delay caused for filing notice of motion for restoration
of suit no. 7283 of 1996. The suit of plaintiff was posted for
recording evidence on 05.02.2014. From the roznama it is seen that
issues came to be framed below Exhibit-2 on 16/12/2013 and
thereafter suit was posted for evidence of plaintiff on 05.02.2014. It
is further seen that on the same date suit came to be dismissed due to
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2 Ord. in NM no 453 of 2019 in Suit no. 7283 of 1996
absence of plaintiff. The learned advocate for plaintiff would argued
that after transferred of suit form Hon’ble High Court, the plaintiff did
not received notice for appearance before the City Civil Court.
However, Roznama dated 24.09.2013 shows that plaintiff was present
before the Court in person. In this back drop the claim of plaintiff
that he did not received notice for appearance after transferred of suit
from Hon’ble High Court to City Civil Court, cannot be accepted. The
suit of plaintiff is for money decree. It is seen that, on the first date
after framing of issues, suit came to dismissed.
2. It is stated that the plaintiff learn from this cousin
brother Anil Jain on 18.10.2018 that his suit was not on board and
thereafter, he verified and noticed that suit was dismissed for default.
The present notice of motion came to be lodged on 17/01/2019 i.e.
after 4 years, 11 month, 11 days from the date of order of dismissal
of the suit. The plaintiff came with a case that, his father was looking
after the affairs of his family and due to his illness, he could not
pursue the suit since 2007. It is further stated that Advocate who
received papers from the father of plaintiff, assured to appear in the
suit. It is further stated that the plaintiff made enquiry about his
advocate and learn that he was expired. The plaintiff has tried to
explain the delay caused for filing notice of motion for restoration of
suit, in his affidavit filed in support of present notice of motion.
3. The learned advocate for defendant would submit that
the contents of affidavit filed in support of notice of motion are
contrary to each other. The learned advocate made reference to para
1 and 11 of affidavit and tried to demonstrate that plaintiff has made
self-contrary statement. He would further argued that the reasons
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3 Ord. in NM no 453 of 2019 in Suit no. 7283 of 1996
stated in the affidavit are false and cannot be considered for
condonation of delay. From the record it is seen that delay of 4 years,
11 months and 11 days for taking out present notice of motion. The
suit of plaintiff is for recovery of amount. Considering the reasons
stated in the affidavit and dispute between the parties, it is just and
necessary to give one more opportunity to the plaintiff. At the same
time, the delay caused for taking out notice of motion is also required
to be considered to compensate the defendant. In the above
circumstances, following order is passed to meet both the ends of
justice.
ORDER
1. The Notice of motion no. 453 of 2019 is hereby allowed
and delay caused for filing notice of motion is condoned subject to
costs of Rs.20,000/- to be paid to the defendant within 14 days from
the order.
2. The suit be restored to its original stage on payment of
costs amount.
(R.R.Patare)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.29.04.2024 (C.R. No.1)
Dictated on : 29.04.2024
Direct Typed on:29.04.2024
Signed on : 29.04.2024
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4 Ord. in NM no 453 of 2019 in Suit no. 7283 of 1996
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 02.05.2024 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri R. R. Patare
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 29.04.2024
JUDGMENT/ORDER signed by P.O. on 30.04.2024
JUDGEMENT/ORDER uploaded on 02.05.2024
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