Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 457/19(Suit 3266/11)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.457/2019
(CNR No.MHCC01-001145-2019)
IN
S.C SUIT NO. 3266/2011
Mr. Ali Hasan Khan Mohd. Saif Khan ..Plaintif
V/s.
1. Mr. Nizamuddin Abdul Aziz Khan
2. Mrs. Safia Begum w/o. Abdul Aziz Khan
3. Mr. Hasinuddin s/o. Abdul Aziz Khan
4. Mrs. Zaifurnisa wd/o. Amrulla Khan
5. Mr. Zubir s/o. Amrulla Khan
6. Mr. Tariq s/o. Amrulla Khan
7. Mr. Amir s/o. Amrulla Khan ..Defendants
Appearance:-
Adv. Mr. Raut for plaintif.
Adv. Mr.D.S. Rajapurkar for defendant no.1.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 6.2.2020.
ORAL ORDER
1. This Notice of Motion is taken out bi the plaintif for
condonation of delai of fve iears and 324 dais in taking out
notice of motion and for setting aside order dated 21.1.2013
and for restoration of the Suit.
2. The Notice of Motion is supported bi an afdavit of
plaintif Mr. Ali Hasan Khan Mohd. Saif Khan and documents
fled on record. Defendants have opposed the Motion bi
submitting afdavit in repli bi Mr. Nizamuddin Abdul Aziz
Khan (defendant no.1).
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3. I have heard Ld. Adv. Mr. Raut for the plaintif and
Ld. Adv. Mr. Rajapurkar for defendant no.1 on the notice of
motion.
4. It is submitted on behalf of the plaintif that, he has
fled the Suit in the iear 2011 against defendants seeking
various relief. Originalli the Suit was fled before Hon’ble High
Court (Original Side) and vide order dated 14.2.2011, no ad-
interim relief was granted bi the court and the Motion was
dismissed. The plaintif was directed to pai balance court fees
amount within two weeks from 18.1.2011 after registration of
the suit and it was directed that, if the plaintif failed to
compli with the above directions, the Suit shall stand
dismissed.
5. As per above order, the suit was registered and the
plaintif had paid remaining court fees. The suit was given Suit
No. 496/2011. It is submitted that, due to ill-health, the
plaintif was not able to attend the court after suit proceeding
was transferred to Citi Civil Court. Therefore, inspite of
plaintif paiing remaining court fees, Ld. Judge of the Citi Civil
Court, in this matter, had dismissed the Suit on the ground
that the plaintif had failed to compli with the order passed bi
Hon’ble High Court, vide order dated 21.1.2013. Ld. Counsel
for the plaintif referred to the documents fled on record vide
Exhs.’B’ and ‘C’ and submitted that, the plaintif was sufering
from ill-health and was under medication for chronic
depression. Medical papers have been fled on record. On
7.1.2019, the plaintif was informed that, the court had
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rejected the plaint for non-paiment of defcit court fees. Under
the above circumstances, present Motion is taken out bi the
plaintif for condonation of delai and for setting aside order
passed bi this court dated 21.1.2013.
6. Ld. Counsel for the defendant no.1 has strongli
opposed the Motion and relied on the afdavit in repli and
submitted that, there is huge delai in taking out the Motion bi
the plaintif for setting aside the dismissal order and for
restoration of the suit. Hon’ble High Court had passed order
dated 14.2.2011, which was conditional order. The plaintif has
not produced ani documentari evidence to show that he had
complied with the order passed bi Hon’ble High Court and
paid court fees. Even if the plaintif was sufering from illness,
he was represented bi an advocate. Therefore, no concession
can be sought on that count for condonation of delai. Under
the above circumstances, the Motion is liable to be dismissed.
7. After going through the notice of motion and
supporting afdavit as well as record of the case and after
taking into consideration oral submissions made bi Ld.
Counsels for both sides, as per medical papers fled on record,
it appears that, the plaintif was under medication for
treatment of his ill-health i.e. sufering from depression and
sleeplessness etc. Perusal of record of the case and Roznama
show that, the plaintif had deposited balance amount of court
fees in the High Court. There is an endorsement dated
20.1.2011, at pg.99, fled with the plaint that, court fees of
Rs.36,630/- had been paid, and therefore the conditional order
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was complied with.
8. Under the above circumstances, I am of the opinion
that, the dismissal of the Suit for non-compliance of the order
of the Hon’ble High Court is not proper and needs to be set
aside. So far as the aspect of delai is concerned in taking out
the present notice of motion is concerned, I am of the opinion
that, it is justifed bi the circumstances and ill-health of the
plaintif supported bi documents on record. However, in view
of the aspect of delai in the matter, reasonable costs can be
imposed on the plaintif. Hence, I proceed to pass following
order :-
ORDER
1. Notice of Motion No.457/2019 is herebi allowed
and made absolute subject to plaintif paiing
costs of Rs.2,000/- to defendant no.1/ depositing
the same in the court within four weeks from
todai.
2. If the above directions are complied with bi the
plaintif, the Suit No.3266/2011 shall stands
restored.
N/M stands disposed of accordingli.
(V.V. Vidwans)
Judge, Citi Civil Court,
Date: 6.2.2020 Gr. Bombai (C.R. 03)
Dictated on :6.2.2020
Transcribed on : 6.2.2020
Draft given on : 6.2.2020
Signed bi HHJ on : 7.2.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 7.2.2020
TIME: 5.15 pm (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 6.2.2020
Judgment/ order signed bi P.O on 7.2.2020
Judgment/ order uploaded on 7.2.2020
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