Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 698-19 in SU 106-2016
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.698 OF 2019
(CNR No.MHCC01-001800-2019)
IN
SUIT NO.106 OF 2016.
(CNR No.MHCC01-012721-2015)
Ashok Developers }...PLAINTIFF.
In the matter between }
M/s. Ashok Developers }
Versus
1.Mrs. Snehalata Govind Rane and Ors. }...DEFENDANTS.
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Shri.Dhumal , learned advocate for the plaintiff.
Smt. Shivani Kundan, learned advocate for the defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.No.62)
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O R A L O R D E R
(Delivered on 12/08/2021)
1. By filing this Notice of Motion, plaintiff has prayed to
restore the suit by condoning the delay and by setting aside the order
dated 17/11/2018.
2. Read the affidavit filed in support of the Notice of Motion
by the partner of the plaintiff and reply filed by the defendants. Heard
learned Shri.Dhumal advocate for the plaintiff and learned Smt. Shivani
Kundan advocate for the defendants. Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether plaintiff has shown sufficient cause
to condone the delay and restore the suit? ....Yes.
ii) What order? ...As per final order.
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2 NM 698-19 in SU 106-2016
R E A S O N S
AS TO POINT NO.(i):
4. Admittedly, Suit No.106 of 2016 has been dismissed in
default for want of prosecution as per order dated 17/11/2018 and this
Notice of Motion is taken out on 14/12/2019. Admittedly, there is a
delay of 83 days in taking out this Notice of Motion. It is contended in
the Notice of Motion that previous advocate of the plaintiff informed
him about dismissal of the suit in default on 25/12/2018 and thereafter,
plaintiff has appointed new advocate who prepared this Notice of
Motion. It does not appear that the delay in taking out the Notice of
Motion is deliberate and intentional.
5. Perusal of roznama of the suit shows that matter was
adjourned from time to time for hearing on issues after it was posted for
filing draft issues for the first time on 12/07/2018. Ultimately, the suit
came to be dismissed in default on 17/11/2018. Apparently, the matter
was not posted for recording of evidence when it came to be dismissed
in default for want of prosecution. Deponent of the affidavit filed in
support of the Notice of Motion has stated on oath that he is a Senior
Citizen and handicapped person because of which he could not give
instructions to his previous advocate for taking steps in the matter and
he himself could not appear personally before the court for the same
reasons. It does not appear from the reply filed by the defendants that
they have denied that said deponent is Senior Citizen and handicapped
person. It does not appear that the absence of the plaintiff or the
advocate for the plaintiff before the court was deliberate and intentional
when the matter was posted for filing draft issues. Having regards to it
and the fact that suit came to be dismissed in default at the stage of
tendering draft issues, this court is of the opinion that it is necessary to
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3 NM 698-19 in SU 106-2016
give a fair opportunity to the plaintiff to contest the suit on merits by
restoring it. Since the defendants are not at fault, it is necessary to
compensate them by imposing certain costs on the plaintiff while
accepting the prayers made in the Notice of Motion. For those reasons, I
answered the point No.1 accordingly and pass the following order.
O R D E R
Notice of Motion No.698 of 2019 is allowed in terms of its
prayer clause (a), (b) and (c) subject to cost of Rs.1,000/-(Rupees One
Thousand only).
Plaintiff shall pay/deposit the amount of cost as mentioned
above within six weeks from today.
After the cost is paid/deposited, Suit No.106 of 2016 shall
stand restored to its original stage.
Date : 12/08/2021. (P.P.RAJVAIDYA)
Dictated on : 12/08/2021. Judge, C.R.No.62,
Checked on : 12/08/2021. City Civil Court,
Signed on : 12/08/2021. Mumbai.
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4 NM 698-19 in SU 106-2016
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
12/08/2021 at 4.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 12/08/2021.
Order signed by P.O. on 12/08/2021.
Order uploaded on 12/08/2021.
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