Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order in N/M No.562/2019 in S.C. No. 596/
2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 562 OF 2019
(CNR NO. MH001 0014472019 )
IN
S.C. SUIT NO. 596 OF 2017
Rajesh Kishore Ahirwal ].. Plaintiff.
V/s.
1. Maharashtra Housing & Area Development ]
Authority and Others. ]..Defendants.
Appearance. :
Advocate Mr. Ajit Shobhawat for the plaintiff.
Advocate Mr.Kamble h/f Adv Kandekar for defendant No.1 & 2.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B.
KAKATKAR (C.R.No.09).
DATE : 8th March, 2022
ORDER
The Notice of Motion is taken out for setting aside the
order dated 08/01/2019 dismissing the Notice of Motion No. 282 of
2017 in Suit No. 596 of 2017 and restore the same for hearing on
merits.
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2 Order in N/M No.562/2019 in S.C. No. 596/
2017
2. It is the case of plaintiff that the suit is instituted for
permanent injunction restraining the defendants from forcibly
dispossessing plaintiff from the suit premises without following due
process of law and other reliefs. Plaintiff has stated that the Notice of
Motion No. 282 of 2017 was kept for hearing on 08/01/2019. On that
day, plaintiff and his learned advocate were not present when the
matter was called out. Therefore this court dismissed the said Notice of
Motion for default.
3. Plaintiff has further stated that on 08/01/2019, his
advocate was suffering from viral fever. It occurred again after 10 days
and hence he was advised to take a rest. The plaintiff has relied upon
medical certificate of his learned advocate but it does not appear to be
produced on record.
4 Plaintiff has further stated that he is serving as a teacher
and his school timing is up to 5:30 p.m. Therefore he could not attend
the Court. Plaintiff has further stated that the absence of his learned
advocate was not intentional. It is further stated that learned advocate
for plaintiff took inspection of office record on 16/01/2019 in the court
and found that the Notice of Motion No. 282 of 2017 has been
dismissed for default in the absence of learned advocate and plaintiff.
Therefore the present notice of motion was taken out for restoration.
Plaintiff has further stated that he may not be punished for the fault of
his learned advocate.
5. Plaintiff has further stated that this Notice of Motion is
filed within 30 days from the date of dismissal of Notice of Motion No.
282 of 2017. Plaintiff has further stated that he has very good case on
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3 Order in N/M No.562/2019 in S.C. No. 596/
2017
merits and therefore in the interest of justice, equity and fair play, the
order of dismissal of Notice of Motion dated 08/01/2019 may be set
aside.
6. In spite of having ample opportunity, defendants failed to
file their reply to the Notice of Motion. The Roznama dated 08/01/2019
shows that plaintiff was absent for 3 consecutive dates before
08/01/2019.
7. It is the case of plaintiff that his learned advocate was not
keeping well on 08/01/2019. Hence he could not attend the court.
Plaintiff was busy in his school and hence he also could not attend the
court. Hence the Notice of Motion 282 of 2017 came to be dismissed
for want of prosecution. Plaintiff has not produced any medical
certificate of his learned advocate. Plaintiff has not produced any
document on record that on the relevant day he could not attend the
court as he was busy in his school.
8. The present Notice of Motion is filed on 05/02/2019 that is
within a period of 30 days from the date of dismissal of Notice of
Motion no. 282 of 2017. This shows that plaintiff is diligent in
conducting the matter at the same time it is necessary to note that the
conduct of plaintiff caused unreasonable delay in the matter. Therefore
plaintiff is liable to pay costs.
9. Plaintiff has stated that he has moved case on merits. It is
necessary to give both the parties proper opportunity of presenting their
side. Therefore in the interest of justice, I am inclined to allow the
present notice of motion. However plaintiff is liable to pay costs to the
defendants. Accordingly I proceed to pass following order.
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4 Order in N/M No.562/2019 in S.C. No. 596/
2017
ORDER
1. Notice of Motion No. 562 of 2019 is allowed
subject to payment of cost 250/ (Rs. Two Hundred Fifty	₹
Only) to each of the defendants by the plaintiff within 30
days from the date of this order.
2. On payment of cost by plaintiff as aforesaid,
the order of dismissal of Notice of Motion No.282 of 2017
dated 08/01/2019 is set aside.
3. On payment of cost by plaintiff as aforesaid,
the Notice of Motion No.282 of 2017 be restored to its
original stage.
4. Plaintiff is directed to bear his own costs of
this notice of motion.
5. Notice of Motion No.562 of 2019 is disposed
of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
Date: 08.03.2022 City Civil Court, Gr.Mumbai.
Direct Typed on: 08.03.2022
Checked on : 08.03.2022
Signed on : 15.03.2022
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5 Order in N/M No.562/2019 in S.C. No. 596/
2017
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF CLERK
17.03.2022 AT 11.30 A.M. MR.PRAVIN V. KHARCHE
Name of the Judge (with
Court Room no.)
HHJ SHRI VIDYADHAR B. KAKATKAR
(C.R. No.09)
Date of Pronouncement of
Judgment/Order
28.02.2022
Judgment/Order signed by
P.O. on
05.03.2022
Judgment/Order uploaded
on
17.03.2022
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