Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 570-19 in SC. Suit no. 7906-1987
1 Date : 17.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 570 OF 2019
IN
S.C. SUIT NO. 7906 OF 1987
(CNR NO.MHCC010014712019)
Anwar Hajee Ali Mohammed & Ors. .. Plaintiffs
Versus
Koyala Bhagwan Dhondi & Ors. .. Defendants
Appearances :
Adv.Nitant Sheth for plaintiff present.
Adv.Sunil Sharma for defendant no.5 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 17.09.2019
1. The defendant no. 5 has filed instant Notice of Motion for
setting aside order dated 17.10.2018, by which this Court on the
statement of advocate of defendant no. 5, allowed to withdrawn
the Notice of Motion No. 890 of 2017.
2. It is contended by the defendant no. 5 that on 17.10.2018
his advocate was not keeping well and he was not carrying brief of
the matter. So he requested the Court for short adjournment. As
the settlement talk were going on between parties, therefore,
advocate was carrying draft consent term which was handed over
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2 Date : 17.09.2019
to him by the advocate of the plaintiff. Accordingly, his advocate
made such statement before the court, however, upon the query
made by the Court in respect of pendency of Notice of Motion 890
of 2017, due to oversight and under bonafide impression, their
advocate submitted that the Notice of Motion No. 890 of 2017 is
filed under Section 9A of Civil Procedure Code, 1908 and
submitted that in view, of the recent amendment of CPC, the
aforesaid Notice of Motion become infructuous.
3. It is submitted by the defendant no. 5 that their advocate has
made such statement under bonafide impression because their
advocate is representing to another client namely Rocky
Dilipkumar Parmar in suit no. 1427 of 2015 and the notice of
motion under Section 9A has been filed in that matter. In fact, the
Notice of Motion No. 890 of 2017 is filed under Order VII Rule
11(D) for rejection of the plaint. On the aforesaid date, in view of
the statement made by their Advocate, the Notice of Motion No.
890 of 2017 was disposed off as withdrawn and as the settlement
talk were going on between parties, the matter was referred to the
forthcoming National Lok Adalat schedule to be held on
08.12.2018. Therefore, the matter was referred to the Lok Adalat.
However, in the Lok Adalat, the matter could not be settled and
thereafter, the defendant no. 5 realising their mistake filed instant
Notice of Motion for recalling of order dated 17.10.2018 and
granting opportunity of hearing on the said Notice of Motion.
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3 Date : 17.09.2019
4. The Notice of Motion is vehemently opposed by the plaintiff
by filing their say on the ground that the advocate of defendant
no. 5 has appeared in the aforesaid matter and also in the Notice
of Motion for several occasions. The reasons assigned by the
defendant no. 5 is false. There a huge delay in filing the aforesaid
Notice of Motion. It is further contended by the plaintiff that this
Court has no jurisdiction to recall the order dated 17.10.2018 as to
the extent of Notice of Motion No. 890 of 2017, the powers of this
Court is functious officio. Hence, this Court can not recall the
impugned order. Hence, plaintiff prayed for dismissal of Notice of
Motion.
5. Heard both the side. Perused Notice of Motion, reply as well
as rejoinder to the Notice of Motion and Roznama dated
17.10.2018. On perusal of the Roznama, it appears to me that on
the statement made by the advocate of defendant no. 5, my
predecessor has allowed to withdraw the Notice of Motion No. 890
of 2017. At that time my predecessor had specifically recored that
in view of the recent amendment under Section 9A of CPC as it is
deleted, the Notice of Motion No. 890 of 2017 is allowed to be
withdrawn. In fact, the Notice of Motion No. 890 of 2017 is under
Order VII Rule 11(D) of CPC and not under Section 9A. Therefore,
the reasons assigned by the defendant no. 5 appears to be genuine.
However, this Court on 17.10.2018 also recorded that the
settlement talks were going on between parties and defendant no.
5 and one Mr. Girish has handed over the copy of Consent Terms.
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4 Date : 17.09.2019
Therefore, the matter was referred to the National Lok Adalat
which was to be held on 08.12.2018. Thus, from the aforesaid
Roznama itself, it is clear that under the bonafide belief the
advocate of defendant no. 5 has made statement and believing the
statement of Advocate of defendant no. 5, the Notice of Motion
No. 890 of 2017 was allowed to be withdrawn.
6. In my view, this Court can recall the order dated 17.10.2018
by invoking provisions of Section 151 of CPC. In my view, the
mistake on the part of the advocate appears to be bonafide and for
his mistake, the client should not be suffered. Therefore, in view
of the above discussion, I am inclined to allow the present Notice
of Motion. Thus, I proceed to pass the following order :
ORDER
1. Notice of motion no. 570 of 2019 is hereby made absolute
in terms of prayer clause “a to c”
2. Notice of Motion No. 890 of 2017 be taken on the file.
3. Notice of Motion No. 570 of 2019 is disposed off accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 17.09.2019 Gr. Bombay
Dictated on : 17.09.2019
Typed on : 17.09.2019
Operative Order uploaded on : 17.09.2019
Draft Submitted on : 17.09.2019
Checked on : 18.09.2019
Signed on : 18.09.2019
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NM 570-19 in SC. Suit no. 7906-1987
5 Date : 17.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
18/09/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
17/09/2019
JUDGMENT/ORDER signed by P.O.
on
18/09/2019
JUDGMENT/ORDER uploaded on 18/09/2019
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