Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 623/19 IN SUM.SUIT 668/2018 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOITON NO. 623 OF 2019
IN
SUMMARY SUIT NO.668 OF 2018
(CNR NO.: MHCC010016172019)
Mr. Sayalu Hanmanlu Shapurkar ...Plaintiff
Versus
Mr. Laxman Yashwant Mohite ...Defendant
Appearances:
Advocate Mr.Balbheem Patil for the Plaintiff.
Advocate Mr. Rajesh Patil for defendant.
CORAM : HIS HONOUR JUDGE
SHRI. M.S.LONE
(C.R.NO.28)
DATE : 29TH AUGUST 2019
ORAL ORDER
This is notice of motion for setting aside exparte decree of
dismissal of suit passed by this court on 01/02/2019.
2. Heard Ld. Counsel for the plaintiff and Ld. Counsel for defendant.
3. From the material on record following points arise for my
determination and my findings with reasons are as follows:
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NM 623/19 IN SUM.SUIT 668/2018 2
POINTS FINDINGS
1. Whether there is sufficient cause
to set aside the exparte decree dated
01/02/2019 and to restore the suit?
Yes
2. What order? As per final order
REASONS
AS TO POINT NOS.1&2
4. The Ld. Counsel for the plaintiff has submitted that this suit is for
recovery of Rs. 3,40,500/. The plaintiff case is that he had given
amount of Rs.3,00,000/ on 02/08/2017 to defendant as a loan and
defendant has executed promissory note. When defendant failed to
repay the amount plaintiff has filed this suit. Inspite of service of suit
summons defendant remained absent, suit was proceeded exparte. Due
to inadvertence the plaintiffs advocate filed some other documents
pertaining to summary suit No.667/2018. The court dismissed the suit
observing that the documents and oral evidence are inconsistent,
therefore, this notice of motion.
5. The defendant had resisted this application by filing reply. Ld.
Counsel for defendant had submitted that the notice of motion is not
maintainable because the said suit was dismissed on merits by this
court. The plaintiff should have filed first appeal. The plaintiff has not
filed this application within limitation and not explained the delay.
Therefore this motion be rejected with costs.
6. From the record it can be seen that the original documents which
are filed by plaintiff are of some other case. Though there is no specific
provision to restore the exparte order of dismissal of suit but under
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NM 623/19 IN SUM.SUIT 668/2018 3
section 151 of the Code of Civil Procedure Code 1908 in the interest of
justice such suit can be restore. Prima facie it seems that due to
oversight advocate for plaintiff has filed documents pertaining to other
case in this suit. The documents relied by plaintiff in this suit are filed in
other case. To prevent the failure of justice as if those documents would
have been before court the result could have been different. It is true
that there is some delay in filing this notice of motion but taking into
consideration the peculiar circumstances of this case, the delay is also to
be condoned. The defendant could get chance to defend him as per the
provisions of Order XXXVII of the Civil Procedure Code, 1908. It will be
just and proper if this suit is decided on merits by giving fair chance to
both sides. The delay can be condoned in terms of costs. Therefore,
point No.1 is answered as 'Yes' and following order is passed.
ORDER
1. Notice of Motion No.623/2019 is allowed.
2. The delay to file this Notice of Motion is condoned subject to
costs of Rs. 1000/ to be paid to the defendant.
3. Judgment and decree dated 01/02/2019 is set aside subject to
costs of Rs. 3000/ to be paid to defendant.
4. On payment of costs, suit is restored to its original file.
5. Notice of Motion No.623/2019 is disposed of accordingly.
(M.S.LONE)
Judge,
Date: 29/08/2019 City Civil Court,Gr. Bombay
Dictated on : 29/08/2019
Transcribed on : 29/08/2019
Signed on : 29/08/2019
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NM 623/19 IN SUM.SUIT 668/2018 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30/08/2019 at 5.20p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
29/08/2019
Judgment/Order signed by P.O. on 29/08/2019
Judgment/Order uploaded on 30/08/2019
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