Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 439/2018 in Suit 8561/1998
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.439 of 2018
IN
SUIT NO. 108561 of 1998
CNR NO.: MHCC010017452018
Maharashtra State Electricity Board ...Plaintiff
Versus
Himachal Conductors Limited ….Defendant
Appearances:
Advocate Jaiswal for the Plaintiff.
Advocate Shashank Fadia for the defendant.
CORAM : HIS HONOUR JUDGE
SHRI.M.S.LONE
(C.R.NO.28)
DATED : 26TH SEPTEMBER 2019
ORDER
This is Notice of motion is for to set aside dismissed for default
order dated 29.11.2017.
2. Heard Ld.counsel for plaintiff and learned counsel for the
defendant.
3. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1.Whether there is sufficient cause
to restore the original suit by
setting aside the order of dismissal
dated 29.11.2017?
No
2. What order? As per final order
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REASONS
AS TO POINT NOS.1 &2.
4. The Ld.counsel for plaintiff has submitted that on the day fixed
for hearing on 29.11.2017, the concerned associate advocate could not
appear before this Court, as he was on his legs before the Hon'ble High
Court. On inquiry, it was informed that the matter was adjourned to
29.11.2017. On 29.11.2017, again the advocate was absent due to
pendancy of matter before the Hon'ble High Court. The suit was
dismissed for want of prosecution. Plaintiff has to recover amount of Rs.
80,18,788/ from the defendant. Therefore, this Notice of Motion.
5. The defendant resisted this motion by filling reply. The Learned
Advocate for defendant has submitted that due to negligence of plaintiff
and his advocate, the suit was dismissed for default. The affidavitin
support of Notice of Motion is not filed by any authorized person of
plaintiff board but it is filed by an advocate clerk. Therefore, the Notice
of Motion be rejected.
6. At the outset, it is noted that as per Article 122 of the Limitation
Act, 1963 the application for restoration of suit dismissed for default of
appearance or for want of prosecution has to be filed within 30 days
from the date of dismissal. Undisputedly, this suit was dismissed for
default on 29.11.2017. Therefore, this Notice of Motion was to be filed
within 29.12.2017. The record shows that this Notice of Motion was
presented on 01.02.2018 which means there is delay of one month
three days. The plaintiff has not stated anything about this delay. The
reasons stated by the plaintiff that the advocate could not attend this
Court because he was busy in another Court is not satisfactory. As Order
17 Rule 1 proviso (c) of Civil Procedure Code, 1908 states that the fact
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that the pleader of a party is engaged in another Court, shall not be, a
ground for adjournment. When this is made unreasonable ground for
adjournment, how could it be a sufficient ground for setting aside the
dismissal of suit order. The affidavitinsupport of this Notice of Motion
is also not filed by the authorized person of plaintiff. It is filed by the
clerk of advocate. On all these grounds, the Notice of Motion cannot
sustain and is liable to be rejected. Therefore, point no. 1 is answer as
'No' and following order is passed:
ORDER
1. Notice of Motion No.439/2018 stands rejected with cost.
2. Notice of Motion No.439/2018 is disposed of accordingly.
(M.S.LONE)
Judge,
Date: 26/09/2019 City Civil Court,Gr. Bombay
Dictated on : 26/09/2019
Transcribed on : 26/09/2019
Signed on : 27/09/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
27/09/2019 3.05 p.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Shri. M.S.Lone
(C.R.NO.28)
Date of Pronouncement of
Judgment/Order.
26/09/2019
Judgment/order signed by P.O on 27/09/2019
Judgment/order uploaded on 27/09/2019
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