Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.787/2019 in Suit No.3950/2009
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 787 OF 2019
CNR NO.:MHCC01-002032-2019
IN
SUIT NO. 3950 OF 2009
(HIGH COURT SUIT NO. 1857 OF 2009)
Dr. Mohd. Hadish Mehboob Khan & Anr. ...Plaintif
Versus
M/s. Mangal Moorti Dev (P) Ltd. ...Defendant
Appearances:-
Advocate Mr. Chandraprakash D. Mishra for the Plaintifs.
Advocate Mr. Nagvadaria for the defendant.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R. NO.14)
DATED : 7th FEBRUARY, 2020.
ORAL ORDER
Heard argument of Advocates for the plaintifs and
defendant.
2. By this Notice of Motion plaintif has prayed that the
Order of dismissing the suit for default be set aside.
3. Plaintif has contended that since 2010 his mother was
not feeling well and was sufering from Parkinson’s disease.
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:2: N.M. No.787/2019 in Suit No.3950/2009
He has further stated that in the month of June, 2013 his
second wife Smt. Habiba Khan was not feeling well and
sufering from breast cancer and she was taking treatment in
KEMH Hospital and Tata Hospital, Mumbai. Plaintif has further
stated that he was sufering from diabetes, blood pressure and
hyper tension. He has further stated that in the month of
March 2014, he was admitted in the Hospital for treatment of
Sinusitis. Plaintif has further stated that in the month of June,
2016 his son was sufering from dengue. He has further stated
that in November, 2016 his wife the plaintif No.2 was
sufering from diabetes, heart disease and hyper tension.
Plaintif has further stated that in June, 2018 his daughter was
sufering from dengue. He has further stated that in
November, 2018 his wife’s left forearm was fractured. He has
further stated that due to illness of himself and his family
members he was in tension and completely disturbed,
therefore, he was not in a position to contact his Advocate.
4. Advocate for the defendant argued that it is not
believable that since 2010 till 2018 plaintif did not get time to
look after the Court matter and did not contact his Advocate.
It is pertinent to see that plaintif has adduced medical papers
also. It is pertinent to see that the disease stated by plaintif
are dengue, breast cancer and fracture to the forearm. These
are very serious health problems for which continue medical
treatment and money for the same is required. Therefore, it is
probable that plaintif was in tension due to such illness to
himself and his family members. There is nothing to show that
plaintif deliberately avoided to attend the Court proceeding.
There is nothing to show that what plaintif was going to get
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benefit by avoiding to proceed with the Suit. Hence, it appears
that plaintif’s family members were sufering continuously
from serious health problems and therefore, plaintif was
completely disturbed. But it cannot be ignored that the matter
was pending for evidence of plaintif since 13.11.2017 and
plaintif failed to lead evidence. Therefore, defendant is
entitled for the cost for delay caused. Hence, it will be proper
to allow Notice of Motion alongwith the prayer to continue the
status quo order which was previously passed in the Suit.
Hence, following order:-
ORDER
1. Notice of Motion No.787 of 2019 is allowed in terms of
prayer clauses (a), (b), (c) and (d) subject to cost of
Rs.4,000/- to be given to defendant by plaintif.
2. Notice of Motion No.787 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 07.02.2020. City Civil Court,
Gr. Bombay.
Dictated on : 07.02.2020
Transcribed on : 07.02.2020
Signed on : 07.02.2020
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:4: N.M. No.787/2019 in Suit No.3950/2009
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.02.2020 At 12:07 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
07.02.2020
Judgment/Order signed by P.O.
on
07.02.2020
Judgment/Order uploaded on 11.02.2020
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