Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.526 OF 2019
IN
S.C. SUIT NO.792 OF 2011
1. Mr.Kishore Kakumal Keswani and ors ..Plaintiffs
V/s
1. M/s.Nahar Enterprises ..Defendants
Ld. advocate Ashutosh Gole for the plaintiffs
Ld. advocate Chaturvedi for the defendants
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 28/08/2019
ORAL ORDER
(1) This notice of motion is tendered by the plaintiff for
condoning the delay and for setting aside the order of dismissal
dated 17/02/2018 and to restore the suit to the original file.
2) Ld. Counsel for the plaintiff submitted that plaintiff has
filed the affidavit in examination in chief with the original
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documents relied upon by the plaintiff. Thereafter, the matter
was adjourned for marking of the documents at the instance of
advocate for the defendants. Ld. Counsel for the plaintiffs
submitted that PW1 could not remain present due to the
personal difficulties and has to travel frequently. PW1 could
not step in the witness box for cross examination. Certain false
and frivolous complaints were filed against him in which he had
to take urgent steps. Even he could not look after the present
matter as his father has expired and therefore the present matter
came to be dismissed for want of prosecution by order dated
17/02/2018. He therefore prayed for setting aside the order of
dismissal of suit.
3) The defendants have filed reply and denied all the
allegations made in the notice of motion. The stand of the
defendants is that several adjournments were granted at the
behest of the plaintiffs and the said suit was listed for dismissal
on 21/08/2013, 24/04/2014 and 11/04/2014. Thereafter the
matter was listed for cross examination of PW1 on 14/02/2018.
On that day neither the plaintiff nor his advocate remained
present. The argument of the Ld. Counsel for the defendants is
that plaintiffs deliberately and intentionally remained absence.
The plaintiffs have not made out sufficient cause for restoration
of the suit and prayed for dismissal of the notice of motion.
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4) On perusal of the record, it appears that on 14/12/2015 ,
advocate for plaintiff tendered affidavit of examination in chief
of PW1 alongwith list of documents. Thereafter the matter was
adjourned to 21/03/2016 and then 25/04/2016 and to
24/06/2016. Subsequently, several dates were given for
marking of documents. Thereafter, the board was regularly
discharged till 12/07/2017. The matter was taken on board on
26/09/2017. On that date, none present for the plaintiff and
matter was adjourned. Further on 15/12/2017, the matter was
adjourned to 14/02/2018 and thereafter the matter was kept for
dismissal to 17/02/2018 and on that day it was dismissed for
default.
5) On perusal of the record, it reveals that on various dates
since filing of the affidavit of evidence, the matter was
adjourned as the board was discharged. No doubt that cannot be
the ground much less sufficient cause for allowing this notice of
motion. The sufficient cause for the plaintiff for not remaining
present on the date on which the matter is adjourned has to be
considered. On perusal of roznama dated 17/02/2018, it reveals
that the advocate for defendnts on instruction made statement
that the relief sought by the plaintiffs is complied by the
defendants and therefore, the plaintiffs are reluctant to
prosecute their suit claim. The plaintiffs have not filed their
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evidence affidavit till date. The same finding is contrary to the
record. Apart from that the plaintiffs have submitted that there
were some complaints filed against him. He was dealing with
those complaints and further he used to travel frequently. Due
to the personal difficulties and consequently he was not
available in town and also could not instruct his advocate with
respect to the present matter. Meantime his father also expired
and therefore there was no one to look after the Court
proceedings. At this stage, the approach of the Court should not
hyper technical and pedantic. The substantial rights of the
parties cannot be overlooked. Considering above the facts, the
plaintiffs have made out sufficient cause for allowing the present
notice of motion. At the same time, the defendants are required
to be compensated. Hence, it is expedient to pass following
order:
Order
1. Notice of Motion No.526/2019 is allowed in terms of prayer
clause (a) and (b) subject to cost of Rs.5,000/ to be paid by the
plaintiffs to the defendants within a period of four weeks from
today.
2. After the compliance of the order of payment of costs, the suit
No.792/2011 be restored to its original file.
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3. Payment of costs is subject precedent.
4. Notice of motion is disposed of accordingly.
28/08/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 28/08/2019
Transcribed on : 04/09/2019
Signed on : 17/09/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
19/09/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
28/08/2019
Judgment and order signed by
P.O.
17/09/2019
Judgment/order uploaded on 19/09/2019
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