Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M 607/2020 (LCS 483/16)
MHCC010015652020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.607 OF 2020
IN
NOTICE OF MOTION NO.1180 OF 2016
IN
LONG CAUSE SUIT No.483/2016
Mr. Babullah Abdullah Khan … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Mr. N. K. Dubey Advocate for plaintiff.
Suryavanshi, Counsel for Corporation/BMC.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 01/11/2023.
O R D E R
. The plaintiff has taken out this Notice of Motion for
restoration of Notice of Motion No.1180 of 2016 by setting aside order
dated 1st August, 2018 dismissing said NM for default.
2. It is contended that plaintiff had taken out NM No.1180 of
2016 and Court has pleased to grant ad-interim relief on 7th March,
-- 1 of 5 --
2 N/M 607/2020 (LCS 483/16)
2016 and said relief was continued till 1st of August, 2018. On 1st of
August matter was posted for hearing of NM. Since filing of suit mother
of the plaintiff was serious and accordingly plaintiff went to his native
place at District Balrampur, Uttar Pradesh. There was land dispute
between the family of the plaintiff and for that purpose he was
compelled to stay there. His Advocate recorded the date of matter in
the diary and for said reason he could not appear on 1st of August,
2018. Advocate of the plaintiff was attending the matter in his absence.
3. It is further contended that in the Month of June, 2019
plaintiff returned to Mumbai and came to know dismissal of NM. Then
he applied for certified copy on 17th June, 2019 and same was delivered
on 25.06.2019. Thereafter he went to Macca-Madine for Huj and
returned on 4.9.2019. Thereafter he was suffering from joindice
therefore there is delay in taking out NM. The delay is not deliberate
and intentional. Hence, delay be condoned and Notice of Motion be
restored.
4. Defendant BMC did not file reply, hence Notice of Motion
heard without reply.
5. Heard Advocate for parties and perused record and
proceeding.
6. The point for determination alongwith my findings thereon
for reason to follow are as under :-
SR.
NO.
POINTS FINDINGS
1. Does plaintiff satisfactorily explained delay caused
in taking out NM ? No
-- 2 of 5 --
3 N/M 607/2020 (LCS 483/16)
2. Does plaintiff shows sufficient cause for his non
appearance when Notice of Motion was called for
hearing?
No
3. What order? Notice of
Motion is
dismissed.
REASONS
As to point Nos. 1 to 3.
7. Learned Counsel for the plaintiff submitted that the
plaintiff has challenged Notice under Section 55 of the MRTP Act. This
Court has pleased to grant Ad-interim relief vide order dated
07.03.2016 and matter was fixed for hearing of Notice of Motion.
However, on 1st of August, 2018 plaintiff could not remain present as he
was held up at his native place due to the ill-health of mother and
family dispute. Thereafter, plaintiff had been to Huj Yatra and he
returned to Mumbai on 04.09.2019 and thereafter he was suffering
from Jaundice. Hence, there was delay in taking out Notice of Motion.
He further submitted that the plaintiffs had satisfactorily explained
delay. In order to decide controversy involved the suit Notice of Motion
be restored.
8. On the other hand, advocate for defendant/BMC submitted
that plaintiff had not produced single document on that part to show
that at the relevant time he was out of Mumbai and not medical
certificate produced to show that he was suffering from Jaundice. It is
further submitted that plaintiff has not satisfactorily explained delay.
Therefore Notice of Motion be dismissed.
-- 3 of 5 --
4 N/M 607/2020 (LCS 483/16)
9. It is well settled that while dealing with an application for
condonation of delay and restoration of the matter dismissed for default
the approach of the Court would be liberal and elastic, rather than
narrow and pedantic. The Court must bear in the mind the object of
doing substantial justice to all the parties concerned and doing away the
illegality perpetuated on the basis of order impugned. Sufficient cause
means the party had not acted in a negligent manner or there was a
want of bonafide on its part. Sufficient cause means the cause for which
party could not be blamed for his absence. It is the contention of the
plaintiff that during the relevant time he was at his native place and he
returned to Mumbai in June, 2019 and obtained certified copy of the
Roznama on 25.06.2019. Then he went to Huj Yatra and returned to
Mumbai on 04.09.2019. However, plaintiff had not produced any
documents showing that at the relevant time he was at his native place.
Plaintiff has not stated when he went to Huj Yatra. There is no
explanation why he has not taken out NM after obtaining certified copy
on 25.06.2019 till he went to Huj Yatra. The ailment of the plaintiff is
not established by evidence. It is true that sufficient cause is the decisive
factor while condoning delay. Though, it is settled that liberal view
should be taken while considering delay, it is equally settled that when
delay is sought to be condoned on account of any delaying tactics
without bonafides with deliberate inaction of negligence also is not
possible. The case does not fall within four corners of the Order-IX Rule-
9 of The Code of Civil Procedure.
10. The plaintiff made vague statement that during the
relevant time he was at native place. There is no explanation as to why
advocate of the plaintiff was not present when matter was called for
hearing. The plaintiff has not shown sufficient cause for his non
-- 4 of 5 --
5 N/M 607/2020 (LCS 483/16)
appearance and not satisfactorily explained delay. Therefore, Notice of
Motion deserves to be dismissed. Accordingly I answer point Nos.1 and
2 in negative and in answer to point No.3 pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 1/11/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
04/11/2023 05:00 p.m. V. U. Pawar
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 1/11/2023
ORDER Typed on 1/11/2023
ORDER signed by P.O. on 3/11/2023
ORDER uploaded on 3/11/2023
-- 5 of 5 --