Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 786 OF 2019
IN
SUIT NO. 1095 OF 2013
1. Maharashtra Rajya Sahakari
Sakhar Karkhana Sangh Limited
2. Mr. Sanjeev Babbar
Managing Director of Plaintiff No.1 ...Plaintiffs.
V/s.
Group Media India Private Limited ...Defendant.
Appearance:
Advocate Mr. Bhushan Mahadik for the Plaintiffs.
Advocate Mr. Dinesh Jain for the Defendant.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 02nd September, 2021.
ORDER
The N/M has been taken out under order 9 Rule 9 of CPC
by the original plaintiff of which suit No.1095/2013 has been dismissed
on 15.12.2018 for want of prosecution. According to the plaintiff, vide
resolution of Board of Directors, its employee namely Niranjan
Nalawade was authorized to appear in the suit and to lead evidence .
He had filed the affidavit in lieu of examinationinchief. On
15.12.2018, due to his absence the suit was dismissed for want of
prosecution. In relevant period, prior to that and thereafter, also the
employee witness was not reporting to his duties. He was habitual
leave seeker. Most of the time he had enjoyed his leave. Due to
absence from the service because of ailment, the witness did not remain
present in court on 15.12.2018. According to the plaintiff, it is
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sufficient and satisfactory cause to restore the suit. The delay of 29
days of filing Notice of Motion be condoned for the reason that on
8.2.2019, after resuming the duties by the witness when inquired about
the suit, it was learned that the suit has been dismissed on 15.12.2018.
2. The defendant has objected the Notice of Motion, vide
reply 27.06.2019 on the premise that since the beginning the plaintiff
was not interested in prosecuting the suit. Due to its negligence, the
suit has been dismissed. The cause shown is not at all satisfactory and
sufficient to condone the delay and set aside the order of dismissal of
suit. No separate application for condoning the delay has been filed. A
concocted story has been put by the plaintiff for getting the relief of
restoration of the suit. The defendant asked to dismiss the Notice of
Motion.
3. Heard. Perused the N/M, reply and the record. On
its basis, following points rise for the determination and the findings to
each of them for the reasons recorded as below.
Sr.No. POINTS FINDINGS
1. Was there any sufficient cause, which
prevented the plaintiff from appearing in
the court when suit was called on for
hearing on 15.12.2018 ?
Yes.
2. Whether the delay of 29 days in filing
N/M has been satisfactory explained by
the plaintiff ?
Yes.
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3. Whether the plaintiff is entitled for the
reliefs claimed ? Yes.
4. What order N/M is allowed.
Reasons:
As to Point Nos. 1 to 3 :
4. It is a matter of record that Niranjan Nalawde was the
employee of the plaintiff. The plaintiff is an Apex body of the Co
operative Sugar Factories of Maharashtra. It is registered under the
provisions of Maharashtra Cooperative Societies Act and the rules
thereunder. The directors of the plaintiff, vide Resolution dated
2.7.2017, had authorised its employee Niranja Nalawade to appear in
the suit and to lead evidence on its behalf. A perusal of the notice of
motion and the accompanied documents, it is appearing that witness
Niranjan Nalawade was suffering from acute accelerated hypertension.
He was taking treatment of Dr.Prashant Deshpande, at Satara. His two
medical certificates on record go to show the nature of his ailment and
his inability to report to the duties in between 4.7.2018 to 10.07.2018 .
His leave application has been filed on record, showing that for the
same period i.e. 4.7.2017 to 10.7.2018, he had sought leave from the
duties by filing medical certificate of Dr.Deshpande dated 16.07.2018.
It appears that the witness was asked to take rest for one month.
Besides that, there are other medical certificates and leave applications
of the witness. A perusal of those medical certificates and leave
applications, it appears that though the witness was authorized by the
plaintiff to appear and lead the evidence in the suit, his own ailment
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had restrained him from appearing in the suit. While hearing of the
notice of motion, the plaintiff submitted a document showing that
because of the frequent leave, witness was removed from the service by
the plaintiff with effect from 17.07.2020. The leave record of the
witness has been made available which goes to show that in the
relevant period the witness had sought the leave for various days. If the
said leave period and medical certificates on record is considered, it is
found that indeed the ailment of the witness was the reason for his
absence from the duties as well as attendance in the Court.
5. It is also a matter of record that on 15.12.2018, the witness
was on his duty. It is not that on that day he was on leave. But the fact
is, whether was it within the knowledge of the witness of keeping the
matter. For his evidence on 15.12.2018 and his need to appear in the
suit ? It is shown by the plaintiff that prior to 15.12.2018, witness was
persistently on leave due to his ailment. In such circumstance, it
appears from the record that on 15.12.2018, though witness reported
his duties, his nonattendance in the suit, cannot be said to be
intentional. From one of the medical certificate relied by the plaintiff
dated 7.12.2018, it is appearing that from 8.12.2018 witness was fit to
resume his duty. Therefore, on 15.12.2018 he was on duty. But as
seen above, can it be said that the absence of witness on 15.12.2018
was intentional. It was not in the interest of either witness or the
plaintiff to not appear in the court, particularly when, its evidence was
being led. The plaintiff was not going to be benefited by not leading
evidence in the suit. It is not that after framing of the issues no attempt
was made to lead the evidence. It is a matter of record that an affidavit
in lieu in examinationinchief came to be filed and witness had to
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undergo his crossexamination. Therefore, it cannot be said indeed the
absence of witness dated 15.12.2018 was intentional.
6. But at the same time, it requires to see that the plaintiff is
an Apex body of Cooperative Sugar Factories of Maharashtra. It's
affairs are being seen by the Board of Directors. A sufficient clerical
staff is available in the plaintiff society. When the management of the
plaintiff was knowing the nature of ailment of the witness, a due care
was required to be taken by the plaintiff to replace its representation by
passing a resolution in favour of aother employee. When the
management of the plaintiff was knowing the fact that its employee
Niranjan Nalawade was a habitual leave seeker, a care was required to
be taken by the Management. But no such care has been taken and the
plaintiff allowed the suit to go for its dismissal. At the same time, it
requires to see that because of satisfactory cause of ailment of the
witness, he could not appear in the Court on 15.12.2018. It is a matter
of record that after the dismissal of the suit also for certain period
witness was not attending the office. If there would have been a
regular attendance in the plaintiff's office, the knowledge of the
dismissal of the suit could have been given to the plaintiff. Therefore, it
caused the delay of 29 days in making application under Order 9 Rule 9
of CPC. In absence otherwise material of having knowledge of the
dismissal of the suit to plaintiff on 15.12.2018 or thereafter till
08.02.2019, the explanation given by the plaintiff for causing delay of
29 days is required to be accepted. When the cause to condone the
delay and to restore the suit is one and the same, there is no necessity
to make a separate application for condoning the delay. Had it been the
fact that the cause shown to condone the delay was different than the
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cause to set aside the dismissal order of the suit, then the arguments of
the Ld. Advocate for the defendant would have been accepted that
because of not filing an appropriate application to condone the delay,
the present notice of motion cannot be entertained.
7. During the course of arguments, it has been submitted on
behalf of the defendant thatsince the plaintiff society has terminated the
services of Niranjan Nalawade, Notice of Motion itself is not
maintainable. It requires to take note that the notice of motion has
been brought by the plaintiff society and not by the witness. The
society acts through its agents, employees as well as office bearers.
Therefore, the termination of the services of the employee Niranjan
Nalawade by the plaintiff society, does not give rise to say that the N/M
is not maintainable.
8. It is seen that because of the ailment of witness Niranjan
Nalawade, the plaintiff could not appear on 15.12.2018 when the suit
was called on for hearing. But it requires to hold that the plaintiff has
taken a casual approach in prosecuting suit. The defendant, who has
been benefited due to the dismissal of the suit is now called upon to
appear in present N/M and face the suit on its restoration. Therefore,
while maintaining a balance between the interest of both, it was
necessary to compensate the defendant in terms of costs, which
considering the casual approach of plaintiff and inaction, should be
quantified to Rs.20,000/. Considering the nature of the suit as well as
the defence, though there is need to have proper adjudication of the
rival questions of controversy involved in suit and need to prevent the
multiplicity of the proceeding, it should be only by way of compensating
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the defendant in terms of costs. Hence, answering the point Nos.1 to 3
accordingly, following order is passed.
ORDER
1. Notice of Motion 786/2019 is allowed subject to payment of costs of
Rs. 20,000/ to Defendant within 7 days from today.
2. The delay of 29 days in filing N/M is hereby condoned and the order
dated 15/12/2018 dismissing the suit is set aside.
3. Payment of costs is condition precedent.
4. On payment of costs, suit be restored at its original state.
5. Parties to appear in the suit No. 1095/13 on 04/10/2021 at 11.00
a.m. without expecting any fresh service of notice on them.
6. Accordingly, the notice of motion is disposed off.
(H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 02.09.2021
Transcribed on : 15.09.2021
Signed on : 20.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 21.09.2021 5.45 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
02.09.2021
JUDGMENT /ORDER signed by P.O. on 20.09.2021
JUDGMENT /ORDER uploaded on 21.09.2021
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