Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 581/2020 in disp. Off. S.C. No.1486/2015. 1 Order.
MHCC010015272020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 581 OF 2020
IN
S.C. SUIT NO.1486 OF 2015
(Disposed off )
1. Zulfikarali Shaukatali Shaikh and
others.
... Plaintiffs
V/s.
1. Shaukatali Shaikh and others. ... Defendants
CORAM : HIS HONOUR AD-HOC JUDGE
& ASSISTANT SESSIONS JUDGE
SHRI A.K.KALE.
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 19/01/2024.
Appearance:-
Ld. Advocate Smt. Vijayarani Prasad h/f Adv. V. T. Dubey for plaintiffs.
Ld. Advocate Shri. Jamkhandi for defendants.
ORDER
1. This notice of motion is taken out by original plaintiffs for
restoration of suit. It is submitted that the suit was filed by the plaintiffs
against the defendants for permanent injunction. The writ of summons
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have been served upon defendant nos. 1 and 4. However, defendant
nos. 2 and 3 were not present at their respective addresses and as per
bailiff report defendant no.3 left the premises and premises of
defendant no.2 was locked when bailiff went for service of summons.
On 17-02-2018, Junior Advocate of Advocate for the plaintiffs attended
the matter and was not aware regarding the joint affidavit of service
and therefore, the matter was adjourned for direction to file the proof of
service of writ of summons against the defendant nos.2 to 4 subject to
costs of Rs.5000/-. Junior Advocate of Advocate for the plaintiffs has
not told the same to the plaintiffs or to his Senior Advocate and as such
on 21-12-2019 the suit came to be dismissed.
2. The plaintiffs are ready and willing to deposit the costs and also
ready to file joint affidavit of service of summons against the defendant
nos.1 and 4. However, plaintiffs seeking permission to delete the name
of defendant nos. 2 and 3 from the proceeding and he only wants to
proceed with the matter against defendant nos. 1 and 4, who were
already served with the summons and they were appeared in the suit.
The matter could not be complied as per order dtd.17-02-2018 for the
above reasons. Therefore, plaintiffs can not be penalized for the reason
of Junior Advocate. He is also ready to deposit costs. It is further
submitted that no harm or prejudice would be caused to the defendants.
However, on the contrary, if the relief, as prayed for is not granted,
plaintiffs would suffer irreparable loss, harm and injury, which cannot
be compensated in terms of money. It is lastly prayed to restore the suit
by setting aside dismissal order.
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3. As per affidavit of service, the notice of motion were served
to defendant nos.1 and 4. But in respect of defendant nos.2 and 3 it is
mentioned that the premises of defendant no.2 was locked and
defendant No.3 was not found. Hence, notices sent by Speed Post.
4. Defendant nos.1 and 4 appeared and filed affidavit in reply.
As per defendants, notice of motion is not maintainable. It is submitted
that the plaintiffs are trying to twist the matter saying that the order
dtd. 17-02-2018 could not be complied by giving blame on the Senior
Advocate and now showing his willingness is just a tactics. On the
above and other grounds, it is prayed that the notice of motion be
dismissed with costs.
5. Perused the application, reply, record of suit and heard both
the sides. The restoration of suit is sought by the plaintiffs on the
ground that on 17-02-2018 the Jr. Advocate of Advocate of plaintiffs
attended the matter and he was not aware regarding the joint affidavit
of service. Therefore, he sought adjournment which was granted subject
of costs of Rs. 5000/-. The said fact has not been disclosed by the Jr.
Advocate to the plaintiffs or Advocate on record and therefore, suit
came to be dismissed on 21-12-2019. As per plaintiffs, affidavit of
service of summons was already prepared on 18-11-2016, but due to
non having of knowledge by the Jr. Advocate that could not be
submitted and therefore, the suit was came to be dismissed.
6. It is seen from the roznama of the suit that on 07-09-2016,
the writ of summons against defendant nos. 1 to 4 was made returnable
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on 21-10-2016 and matter adjourned for affidavit of service. Thereafter,
on 21-10-2016 and thereafter, till 17-02-2018 inspite of several dates,
affidavit of service of summons was not filed. On 17-02-2018, the
adjournment was granted to file service of summons subject to costs of
Rs.5000/-. Thereafter, also no affidavit of service was filed, hence, suit
was dismissed against defendant nos.2 to 4 for want of steps.
Thereafter, also the matter was pending till 21-12-2019. It seems the
matter was pending near about 2 years, thereafter but no affidavit of
service of summons was filed nor the costs was deposited inspite of
several dates. Therefore, lastly on 21-12-2019 the matter was came to
be dismissed in default for non prosecution. The delay for non
compliance between 17-02-2018 to 21-12-2019 has not been explained
by the plaintiffs with satisfactory reasons. The suit was already
dismissed against the defendant nos.2 to 4. The delay for the
restoration of the suit against defendant nos. 2 to 4 is also not shown
and no sufficient reasons has been shown by the plaintiffs. Therefore,
the reasons shown in the notice of motion application are not appears
to be proper and reasonable.
7. Moreover, it is seen that defendant nos. 2 and 3 were not
served with the present notice of motion. As per affidavit of service their
address were not found, so the notices were sent through Speed Post.
The receipt of Speed Post are attached, but the acknowledgment or
Track Report showing service are not filed. At the time of arguments,
Ld. Advocate for the plaintiffs submitted that they are going to delete
defendant nos.2 and 3 from the suit, therefore, the service to the said
defendants cannot affected the decision of this notice of motion. It is
seen that the suit was filed against four defendants, which was came to
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be dismissed for want of steps against defendant nos. 2 and 3. The
present notice of motion is for restoration of entire suit. Therefore, for
deciding the notice of motion, service to all the defendants is necessary.
If, plaintiffs want to delete defendant nos.2 and 3 from the original suit,
it will be possible only when the suit is restored. For restoration of suit
the service of notice of restoration application ie. notice of motion is
necessary to all the defendants. No proof of service of notice of
defendant nos. 2 and 3 has been produced by the plaintiffs. Plaintiffs
had also not made efforts to take option of substitute service by affixing
the notice on the door of defendants or by Paper Publication. No
provision has been shown by the plaintiffs as to why restoration can be
granted without service to some of defendants on the grounds that
plaintiffs are intending to withdraw the suit against them. Therefore,
the said submission of plaintiffs cannot be accepted and hence, notice of
motion is deserves to be dismissed. Hence, I proceed to pass following
order:
- ORDER -
Notice of Motion No. 581 of 2020 is dismissed and accordingly,
disposed off.
(A.K.Kale)
Ad-hoc Judge
City Civil Court,
Date :19-01-2024 Gr. Bombay.
1. Dictated on : 19-01-2024
2. Translated on : 20-01-2024
3. Checked & Signed on : 23-01-2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23-01-2024 5.00 pm. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri A.K.Kale
(Court Room No.63).
Date of Pronouncement of Judgment/Order 19-01-2024
Judgment/Order signed by P.O. on 23-01-2024
Judgment/Order uploaded on 23-01-2024
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