Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION No. 486 OF 2018
IN
SUIT No.1629 OF 2017
Sameer Munir Haji Sharfuddin
through his Constituted Attorney
Mrs. Gulrez Banu Sameer ..Plaintiff.
Versus.
Shakil Munir Haji Sharfuddin & Ors. ..Defendants.
Adv. Kamana Kapoor for plaintiff.
CORAM : Dinesh P. Surana
Court Room No.1
DATED : 27.03.2018.
ORAL ORDER
Heard advocate Kamana Kapoor for the plaintiff on Notice of
Motion No.486 of 2018 for setting aside order dated 12.04.2017 of
dismissal of suit for want of prosecution and for restoration of suit.
2. As the suit was dismissed during stage of removal of office
objection while defendants were not required to be served, I do not
think that for deciding the present application notices are required to be
issued to the defendants.
3. Advocate for the plaintiff submitted that due to her personal
health problem she could not remove office objection firstly and
secondly when the matter was taken up twice for removal of office
objections due to confusion with the department the suit was again kept
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for dismissal, even when matter was restored. Advocate for plaintiff
further submitted that the plaintiff should not suffer for the negligence
or latches on the part of advocate. Therefore, she requested for allowing
Notice of Motion and restoration of the suit.
4. After hearing advocate for plaintiff, I have perused roznama and
R & P. The suit was lodged on 30th September 2016. Several office
objections were raised prior to registration of the suit. The plaintiff did
not remove those office objections therefore, by order dated 17.01.2017
suit was dismissed for want of prosecution by the plaintiff. The plaintiff
filed Notice of Motion for restoration which was allowed by order dated
30.01.2017. As the ground seems to be personal medical problem of
advocate for plaintiff the suit was restored. Thereafter, the suit was
again dismissed by order dated 27.02.2017 for the same ground.
However, it was restored on 31.03.2017, as it was found that the matter
was wrongly taken on 27.02.2017. However, on 31.03.2017, while
restoring the suit my learned predecessor has granted an opportunity to
the plaintiff to make his submission regarding objection Nos.4 and 5, as
other office objections were already removed. That objection Nos.4 and
5 are in respect of valuation and payment of court fee. It is pertinent to
note here that there is endorsement on plaint dated 19.01.2017 and
23.03.2017 by advocate for plaintiff whereby, advocate for plaintiff has
requested to satisfy the court for removal of objection Nos.4 and 5. As
the plaintiff has neither satisfied the court nor removed office objection
therefore, again on 12.4.2017, suit was ordered to be dismissed for
want of prosecution. Thereafter the present Notice of Motion is taken
out on 11th January 2018 that is, after long delay of 9 months.
5. Apparently there is gross delay and latches on the part of the
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plaintiff or to say advocate for the plaintiff to pursue the suit. There is
also negligence on the part of advocate for plaintiff which can be seen
from record that earlier draft Notice of Motion, which was allowed by
order dated 30.01.2017 was not got registered. However, for fault or
negligent on the part of advocate litigant should not suffer. The plaintiff
has filed present suit for declaration in respect of his right, title and
interest in three suit properties, as described in ExhibitC to the plaint.
Again advocate for plaintiff is making statement, which was made
earlier, that the plaintiff is ready to remove office objection. Under such
circumstances, the suit can be ordered to be restored subject to heavy
costs to be imposed on the plaintiff for the delay and latches on his part
to get suit registered by removing all office objections. As such, I
proceed to pass following order.
ORDER
Notice of Motion No.486 of 2018 is allowed in terms of prayer
clause (a) subject to payment of costs of Rs.20,000/ to be deposited by
the plaintiff within 4 weeks from the date of this order with the office of
Legal Aid. Subject to the compliance being made by the plaintiff, the
order dated 12.04.2017 dismissing the suit for want of prosecution is
called back and the suit is ordered to be restored.
The plaintiff is granted 4 weeks time to remove office objection
No.4 and 5.
(Dinesh P.Surana)
Judge, City Civil Court,
Date : 27.03.2018. Gr. Bombay.
Dictated on : 27.03.2018
Transcribed on : 27.03.2018
Signed on : 28.03.2018
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“CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
28.03.2018 4.40 p.m. Mr.Vishnu S. Shinde
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri D.P. Surana (C.R.No.01)
Date of pronouncement of Judgment/ order 27.03.2018
Judgment/Order signed by the P.O. on 28.03.2018
Judgment/Order uploaded on 28.03.2018
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