Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 682/19 in Stamp 1434/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.682/2019
IN
SUIT (STAMP) NO.1434/2018
Mr. Meghraj Jagtram Goyal ..Plaintiff
V/s.
1. Mr. Sat Prakash Goyal
2. Nutan Madhuban Apartments
Coop. Hsg. Society Ltd. ..Defendants
Appearance:
Adv. Mr. Vyas for plaintiff.
Defendant no.1 in person.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 16.7.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiff for
setting aside dismissal order dated 17.11.2018 by condoning delay, if
any, in filing the N/M and for restoration of suit alongwith interim
relief granted by this Court. The N/M is supported by an affidavit of
Meghraj Goyal and documents filed on record vide AnnexuresA and B
respectively. The defendants have resisted the Motion by filing reply
and documents filed on record as AnnexuresA to C. The defendant
no.1 has filed further reply on 21.6.2019 along with documents, which
include Notarized copy of Gift Deed executed by the defendant no.1 in
favour of his daughter Mrs.Aruna Rathi dated 2.1.2019.
2. I have heard Ld. Counsel for the plaintiff and defendant
no.1 in person.
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3. Ld. Counsel for the plaintiff submitted that, as per order
dated 17.11.2018, this Court has dismissed his Suit bearing Stamp No.
1434/2018 on the ground that the plaintiff has failed to remove office
objection but in fact he submitted that, the plaintiff by moving a
precipe, moved the court on 22.11.2018 informing that, the plaintiff
had already paid court fees and removed the objection. However, copy
of challan was not annexed in the papers submitted in the court. As per
office record, there was no document showing that the court fees had
been paid by the plaintiff and therefore, the suit came to be dismissed
in default. But since the suit had been dismissed by the court, the office
could not make endorsement as to when the copy of challan was
produced and payment of court fees was made. Therefore, it could not
record compliance of the said office objection. Under the above
circumstances, it is submitted that, the order of dismissal of the suit in
default needs to be set aside in the interest of justice by condoning the
delay, if any, and interim order granted by this Court needs to be
restored. Ld. Counsel for the plaintiff has produced on record copy of
challan Exh.D. As per said challan, court fees has been paid on
26.9.2018.
4. Defendant no.1 has strongly opposed the N/M and relied
on the reply as well as additional/ further reply. It is submitted that, the
present N/M is barred by limitation as no application for condonation of
delay is filed. The plaintiff has failed to act diligently in the matter and
has allowed the lapse of time to continue and also failed to produce
copy of challan before the court or office within time. Therefore, the
impugned order has been passed by this Court after giving sufficient
opportunity to the plaintiff for making compliance/ showing necessary
documents regarding payment of court fees.
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5. The defendant no.1 has specifically argued that the suit
claim itself has become infructuous in view of the gift deed executed by
the defendant no1 in favour of of his daughter Mrs. Aruna Rathi, copy
of gift deed dated 2.1.2019 is filed on record alongwith further reply,
therefore, there is no question of setting aside the impugned order and
restoration of Suit filed by the plaintiff and hence, the N/M is liable to
be dismissed with cost.
6. After going through the grounds stated in the supporting
affidavit of the N/M and perusal of the copy of challan filed on record
by the plaintiff, I find that, the plaintiff has paid the court fees on
26.9.2018, however it appears that the copy of challan could not be
produced by the plaintiff before the court or office within time granted
by the court. Under the above circumstances, my Ld. Predecessor has
passed an order on 17.11.2018 and dismissed the suit in default for
nonremoval of the office objection. Admittedly, the plaintiff has moved
the N/M after lapse of time and there has been delay in filing the same.
However, considering the above facts and circumstances of the case, I
am of the opinion that, the delay can be condoned by awarding suitable
cost to the defendant. So far as ground of defendant no.1 in reply as
well as further reply to the effect that the suit property has been gifted
by the defendant no.1 to his daughter Mrs. Aruna Rathi on 2.1.2019,
during pendency of the suit is concerned, the said subsequent
development can be taken care of by the plaintiff and can be considered
by the court during the trial of the case on merit. Under the above
circumstances, I proceed to pass following order:
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ORDER
1. Prayer clause (a) in the N/M No.682/2019 is
hereby allowed by condoning the delay subject to
payment of cost of Rs.2000/ (Rs. Two Thousand
only) by the plaintiff to defendant no.1 on the
count of delay within three weeks from today,
failing which the N/M shall stands dismissed.
2. Considering the facts and circumstances of the
case, there shall be no order as to prayer clause
(b) regarding restoration of the interim relief
granted by this court, however the plaintiff is at
liberty to move the Court as and when required
after restoration of the suit.
3. If the plaintiff pays the cost to the defendant, as
directed above, impugned order dated
17.11.2018 shall stand set aside and the suit shall
be restored to file for further trial and disposal
according to law.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 16.7.2019 Gr. Bombay (C.R. 03)
Dictated on : 16.7.2019
Typed on : 16.7.2019
Signed by HHJ on : 18.7.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 18.7.19
TIME: 5.56 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 16.7.19
Judgment/ order signed by P.O on 18.7.19
Judgment/ order uploaded on ...
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