Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 624/19 IN SUM.SUIT 667/2018 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOITON NO. 624 OF 2019
IN
SUMMARY SUIT NO.667 OF 2018
(CNR NO.: MHCC010016182019)
Mr. Sayalu Hanmanlu Shapurkar ...Plaintiff
Versus
Mr.Shamkant Ganpat Lad ...Defendant
Appearances:
Advocate Mr.Balbheem Patil for the Plaintiff.
None 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.
3. Defendant has not filed any reply to this motion.
4. From the material on record following points arise for my
determination and my findings with reasons are as follows:
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NM 624/19 IN SUM.SUIT 667/2018 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
5. The Ld.counsel for the plaintiff has submitted that this suit is for
recovery of Rs.2,27,000/. The plaintiff case is that he had given
amount of Rs.2,00,000/ on 12/08/2017 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.668/2018 in this suit. The court
dismissed the suit observing that the documents and oral evidence are
inconsistents therefore, this notice of motion.
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
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
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NM 624/19 IN SUM.SUIT 667/2018 3
would have been before court the result could have been different
Therefore, point No.1 is answered as 'Yes' and following order is passed.
ORDER
1. Notice of Motion No.624/2019 is allowed.
2. Judgment and decree dated 01/02/2019 is set aside and suit is
restored to its original file subject to cost of Rs.500/ to be paid to
District Legal Services Authority Mumbai.
3. Notice of Motion No.624/2019 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
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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NM 624/19 IN SUM.SUIT 667/2018 4
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