Final Order 1

Order Details: Notice of Motion
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MHCC010011482019
IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 460 OF 2019
IN
SUMMARY SUIT NO.523 OF 2018
Hitesh Khimraj Kanungo ...Plaintiff
V/s.
1. M/s. Raj Ratan Impex & Anr ...Defendants
Appearance :
Adv. Rahul Gadekar for plaintiff.
Defendant and Adv absent.
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 27/07/2022.
ORDER
The present Notice of Motion is moved by plaintiff for
setting aside order of this Court dated 17/11/2018, whereby the suit
came to be dismissed in default.
2. Perused the Notice of Motion and affidavit along with it.
Heard Adv. Gadekar for plaintiff. He submits that though defendants
had caused appearance on 16/07/2018, however they had not
intimated about their appearance to the plaintiff. As such plaintiff was
unaware of defendants appearance. Plaintiff on 08/10/2018, has filed
claim affidavit assuming that the defendant did not appear.
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3. Shri Gadekar submits that on 11/10/2018, the plaintiff
could not remain present. However roznama wrongly reflects that the
plaintiff was present and had sought time. Adv Gadekar further submits
that matter was thereafter transferred to some other Court and
therefore plaintiff, being unaware, could not appear before the
Transferee Court. He submits that on very next date i.e. on
17/11/2018, the suit came to be dismissed in default due to absence of
plaintiff.
4. Shri Gadekar further submits that on very next date i.e. on
24/01/2019, the present Notice of Motion is filed. The absence of
plaintiff and his counsel on relevant date i.e. 17/11/2018 is not
intentional or deliberate. As the defendants had not intimated about
their appearance, plaintiff could not file Summons for Judgment. He
submits that if the suit is not restored, plaintiff would loose substantial
right to claim amount from the defendant and that would cause
hardship and irreparable loss to he plaintiff.
5. Defendants though served are absent. The affidavit of
service of the Notice of Motion is already filed by the plaintiff on
12/04/2019. However, defendants did not turn up to this Court.
6. On perusal of record, the contention raised by the advocate
for plaintiff seems proper. The defendants though appeared on
16/07/2018, according to the plaintiff, he had not intimated plaintiff or
his advocate. Therefore, it is obvious that plaintiff could not file
Summons for Judgment.
7. The contention of Adv for plaintiff about the incorrect
roznama dated 11/10/2018, though found correct, but it is mere
typographical mistake. Ld. Predecessor of this Court in the first line of
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roznama recorded as “ None for plaintiff ”. The application Exhibit-3 for
adjournment was filed by defendants. However, by typographical
mistake it is mentioned that advocate for the plaintiff has filed
application. As such the said typographical mistake in the roznama
dated 11/10/2018 is inconsequential. That has not affected the rights of
plaintiff at all.
8. It is further seen from the record that the matter was
transferred from Court No.28 to Court No.20 and therefore the
submission of the plaintiff that he was unaware to the transfer of matter
seems to be proper and genuine. The matter was thereafter posted for
DID on application of defendant for want of filing for SJ. At the cost of
repetition, it needs to be mentioned that there is nothing on record to
dispute the contention of plaintiff made on oath that he was not made
aware by the defendants regarding their appearance. Sub Rule 3 of
Order XXXVII of Civil Procedure Code, casts duty on the defendants to
give notice of his appearance to the plaintiff or his pleader. However,
this duty does not seem to have been complied with by the defendants
in matter in hand. Therefore, the contention of the plaintiff that he was
unaware about the appearance of the defendant needs to be accepted.
9. In view of Rule 9 of Order IX of C.P.C., the suit dismissed
due to absence of plaintiff can be restored by the same Court. As such
the present Motion can be entertained. In view of the submission and
discussion above, I find that plaintiff is entitled for a chance for hearing
of the suit on merit. It can’t be disputed that if the suit is not registered,
plaintiff would suffer irreparable loss. Hence, the order.
ORDER
1. Notice of Motion No.460 of 2019 is hereby allowed.
2. Suit be restored to its original stage.
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3. Notice of Motion No.460 of 2019 is disposed of accordingly.
Date- 27/07/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on: 27/07/2022
Transcribed on:28/07/2022
Signed on: 30/07/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30/07/2022 Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
26/07/2022
JUDGMENT/ORDER signed by P. O. on 30/07/2022
JUDGMENT/ORDER uploaded on 30/07/2022
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