Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 757-19 in S.C.Suit no.5881-2007
1 Date :12.02.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 757 OF 2019
IN
S.C. SUIT NO. 5881 OF 2007
(CNR MHCC01 0019852019 )
Mrs. Mary Xavier Rosario & Ors. .. Plaintiffs
Versus
Richard Pascal Pereira & Ors. .. Defendants
Appearances :
Adv.Joseph Thattil for plaintiff.
Adv.Vijay Jha for defendant no.3.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 12.02.2020
ORDER
1. The defendant no. 3 has filed instant Notice of Motion
seeking setting aside order dated 15.06.2018 by which the Notice
of Motion No. 3339 of 2015 and Notice of Motion No. 3704 of
2018 was dismissed for non prosecution. The defendant no. 2
further seeking amendment of typographical error occurred in the
dismissed Notice of Motion No. 3339 of 2015.
2. It is contended by the defendant no. 3 that on 03.09.2015,
he has filed Notice of Motion No. 3999 of 2015 for setting aside
exparte order passed against him. During pendency of the said
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Notice of Motion, the plaintiff filed Chamber Summons for bring
legal heir of original plaintiff on record. The plaintiff further filed
Notice of Motion No. 1098 of 2017 for grant of injunction. It is
contended by the defendant no. 3 that on 15.06.2018 the matter
was fixed for hearing of Notice of Motion No. 3339 of 2015.
However, the Court dismissed the Notice of Motion No. 3339 of
2015 on the ground that he was absent. It is contended by the
defendant no. 3 that on 15.06.2018, he was very much present in
the Court. The plaintiff’s advocate is having knowledge of the
same but he deliberately hide his presence from the Court. It is
contended by the defendant no. 3 that he has good case on merit
and bright chance of success. Therefore, he prayed for allowing
his Notice of Motion.
3. Notice of Motion is opposed by the plaintiff by filing his say.
It is contended by the plaintiff that defendant no. 3 although was
served but did not appear on 02.07.2015 the Court proceeded Ex
parte against the defendant no. 3 and not on 03.09.2015. The
plaintiff further alleged the the defendant made misleading and
false statement . In fact, the defendant no. 3 was not present on
15.06.2018 in the Court. Therefore, the Court rightly passed order
dismissing the Notice of Motion No. 3339 of 2015 and Notice of
Motion No. 3704 of 2018 for nonprosecution.
4. It is further contended by the plaintiff that after 15.06.2018,
the matter was adjourned time to time. The defendant on
01.11.2018 tendered unregistered Notice of Motion and filed
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present Notice of Motion after its registration in Court. There is
delay after passing of order dated 15.06.2018 which has not been
explained by the defendant no. 3. Hence, the plaintiff prayed for
dismissal of Notice of Motion.
5. I have heard both the sides. Perused Notice of Motion, reply
and Roznama. It appears from the Roznama that on 02.07.2015
the suit proceeded exparte against defendant. Thereafter, the
matter was adjourned to 03.09.2015. On 03.09.2015, the
defendant no. 3 appeared through his advocate and tendered draft
Notice of Motion which is subsequently, registered as Notice of
Motion No. 3339 of 2015. On perusal of the Roznama, it appears
that the pleadings in respect of Notice of Motion No. 3339 of 2015
has not been completed. I do not find reply of plaintiff to the
Notice of Motion No. 3339 of 2015.
6. It is further appears from the record that the Notice of
Motion no. 3339 of 2015 was listed time to time for hearing rather
for filing reply. However, on 15.06.2018, my Ld. Predecessor
dismissed the Notice of Motion No. 3339 of 2015 due to absence
of defendant no. 3.
7. The defendant no. 3 filed Notice of Motion No. 3339 of 2015
for setting aside exparte order. It appears that the defendant no.
3 was most of occasion present and participated in the
proceedings. The reasons assigned by the defendant no. 3 is that
he was very much present on the said date. The aforesaid reason
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stated by the defendant no. 3 on oath. Even otherwise also, Notice
of Motion No. 3339 of 2015 was not decided on merit. In my
view, in the interest of justice, opportunity of hearing has to be
granted to the defendant no. 3 for hearing of Notice of Motion No.
3339 of 2015. In my view, inconvenience caused to the plaintiff
can be compensated by awarding reasonable cost of Rs. 2,000/.
8. It also appears that on 20.03.2018, the defendant no. 3
tendered unregistered Notice of Motion for condonation of delay
in filing Written Statement. The defendant till 15.06.2018 did not
tender the registered Notice of Motion. Therefore, my Ld.
Predecessor dismissed the said Notice of Motion due to lapses on
the part of defendant no. 3. In my view, the defendant no. 3
should be granted one opportunity in the interest of justice and the
Notice of Motion No. 3704 of 2018 should be heard on merit. For
the fault of defendant no. 3 in not tendering registered Notice of
Motion, the reasonable cost of Rs. 2,000/ can be imposed and
Notice of Motion can be heard on merit.
9. The defendant no. 3 also sought correction of typographical
error in Notice of Motion No. 3339 of 2015. However, the
defendant failed to point out said typographical mistake. Hence,
at this stage, I am not inclined to consider the same. Thus, I
proceed to pass the following order :
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ORDER
1. Notice of Motion No. 757 of 2019 is hereby allowed in terms
of prayer clause (a) and the order dated 15.06.2018 is
hereby recalled and Notice of Motion No. 3999 of 2015
and Notice of Motion No. 3704 of 2018 is hereby restored
subject to the payment of cost of Rs. 4,000/ payable by the
defendant no. 3. Out of the aforesaid cost of Rs. 4,000/
defendant should pay Rs. 2,000/ to the plaintiff and Rs.
2,000/ should be deposited with DLSA.
2. Defendant no. 3 to bear cost of Notice of Motion.
3. Notice of Motion No. 757 of 2019 is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 12.02.2020 Greater Bombay.
Dictated on : 12.02.2020
Typed on : 12.02.2020
Draft Submitted on : 12.02.2020
Checked on : 14.02.2020
Signed on : 14.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
15/02/2020 at 12.30 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
12/02/2020
JUDGMENT/ORDER signed by P.O.
on
14/02/2020
JUDGMENT/ORDER uploaded on 15/02/2020
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