Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.8022019 IN SUIT No.10642008
MHCC010020752019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 802 OF 2019
IN
SUIT NO. 1064 OF 2008
Mr Micheal Thomas Pereira
& Another ] ...Plaintiffs.
Versus
MCGM & Others ]…Defendants.
Appearance:
Ld. Advocate Mooman for Plaintiff.
Ld. Advocate Sanjeet Kadam for Defendant No.3.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 01/10/2022
ORAL ORDER
1) Defendant No.3 has taken out present notice of
motion for recalling the order dtd.22/1/19 dismissing notice of
motion No.2455/13 taken out by defendant No.3 for want of
prosecution and for restoration of notice of motion No.2455/13
and for recalling order dtd.13/2/19 closing the evidence of
defendant No.3 for absence of the witness of the defendant No.3.
2) Perused the notice of motion, affidavit in support of
notice of motion, affidavit in reply of the plaintiff and record.
Heard arguments advanced by Ld Advocate for plaintiff and Ld
Advocate for defendant No.3.
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3) Ld Advocate for defendant No.3 argued that
defendant No.3 was pursuing matter diligently. However, on
12/11/18 the advocate for defendant No.3 who was regularly
appearing in the present matter could not appear due to his
personal difficulty. However, the clerk of the above advocate was
present and he had informed the difficulty and therefore, matter
was adjourned to 22/1/19. However, defendants advocate clerk
inadvertently forgot to update the date in the present matter in
the new year diary and therefore, the advocate who used to
appear regularly for defendant No.3 was not aware about the fact
that the present matter was kept on 2241/19 and thereafter it
was adjourned to 13/2/19. Due to same the advocate for
defendant No.3 could not appear in the present matter on
22/1/19 and 13/2/19. As the advocate for defendant No.3
himself was not aware about the dates he could not inform the
above date to the witness of the defendant No.3 and therefore,
witness of the defendant No.3 was not present for cross
examination on 13/2/19. Thus, defendant No.3 had
demonstrated just and sufficient cause for his absence on 22/1/19
and 13/2/19. Defendant No.3 should not be punished for the
mistake on the part of his advocate and advocate's clerk.
Therefore, Ld Advocate for defendant No.3 prayed that notice of
motion be made absolute.
4) On the other hand Ld Advocate for plaintiff argued
that defendant No.3 was represented by company of advocates.
Though the advocate and his clerk are blamed, affidavit of
advocate for defendant No.3 or his clerk to that effect is not filed.
Defendant No.3 was negligent in pursuing the matter. Therefore,
there is no just or sufficient cause for setting aside the order
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dtd.22/1/19 dismissing notice of motion No. 2455/13 for want of
prosecution and order dtd.13/2/19 closing the evidence of the
defendant No.3. Therefore, Ld Advocate for plantiff submitted
that present notice of motion be dismissed.
5) From the matter on record it appears that as
defendant No.3 and his advocate were absent on 22/1/19 notice
of motion No.2455/13 taken out by defendant No.3 was
dismissed in default for want of prosecution and as the defendant
No.3 and his witness failed to remain present on 13/2/19 for the
cross examination of witness of defendant No.3, the evidence of
defendant No.3 was closed. From the matter on record it appears
that defendant No.3 has taken out present notice of motion on
21/1/19 itself and as such it is within limitation. Partner of
defendant No.3 has stated the cause for non appearance of
defendant No.3 and his advocate and witness on 22/1/19 and
13/2/19 on solemn affirmation. Though the plaintiff denied the
cause stated by the defendant No.3, plaintiff failed to bring on
record any material so as to disbelieve the cause for non
appearance of the defendant No.3 and his witness. It is settled
law that party should not suffer for the mistake on the part of his
advocate or clerk of his advocate. Therefore, from the matter on
record court is satisfied that there was sufficient cause for the non
appearance of the defendant No.3 and his advocate and it's
witness on 22/1/19 and 13/2/19 when the suit was call for
hearing. Moreover, in order to give fair opportunity of hearing to
the defendant No.3 it also appears necessary to give opportunity
to the defendant No.3 to proceed with the notice of motion
No.2455/13 and to adduce his evidence. No prejudice will be
caused to the plaintiff.
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6) Considering the matter on record and above
discussion the present notice of motion deserves to be made
absolute. Hence, court proceeds to pass the following order:
ORDER
1) Notice of Motion No. 802 of 2019 is made absolute in terms of
prayer clause A and B.
2) Notice of Motion 2455 of 2013 be restored to its original stage.
3) Notice of Motion No. 802 of 2019 is disposed off accordingly
Date : 1/10/2022. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :1/10/2022.
Typed on : 3/10/2022.
Checked on :3/10/2022.
Corrected & signed on :4/10/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
8/10/2022. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
1/10/2022
JUDGMENT/ORDER signed by P.O.
on
4/10/2022.
JUDGMENT/ORDER uploaded on 8/10/2022.
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