Order 2

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 580 of 2018, in Suit no. 3414 of 2010
MHCC010021832018
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.580 OF 2018
IN
SUIT NO.3414 of 2010
Narender Bhimsain Thapar ... Plaintiff
V/s
Kamala Bhimsain Thapar and Ors. …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 8th DAY OF DECEMBER, 2023
-: Appearances: -
The learned Adv. Rajesh Jadhav for plaintiff
The learned Adv. Raj Raut h/f Adv. Saxena for the defendant no.2.
The learned Adv. Ranjeet Hatkar for defendant no.1(a).
ORAL ORDER
This notice of motion has been taken out by the plaintiff for
setting aside order dated 02/12/2017, thereby the suit stands dismissed
against the defendant no.1(a), 1(b) and defendant no.3 for not taking
any steps to serve them, by condoning delay of 30 days has been caused
for the same.
2. In short, it is contention of the plaintiff that, he has filed
the present suit against the defendants for declaration and injunction.
-- 1 of 4 --
2 Ord. in NM no 580 of 2018, in Suit no. 3414 of 2010
Initially the suit was dismissed for default, thereafter, it was restored by
taking out Notice of motion no. 3369 of 2013. This Court was directed
the plaintiff to issue writ of summons through registered post on the
defendants. However, due to miscommunications and inadvertence,
service was not effected on defendant no.1(a), 1(b) and defendant
no.3. Therefore, this Court vide an order dated 05/12/2017 was
pleased to dismiss the suit against them. It is contended that due to
oversite and mistake on the part of the advocate, he could not comply
with the order of issuance of writ of summons on defendants no. 1(a),
1(b) and defendant no.3. Therefore, order may kindly be set aside.
3. In-spite of an opportunity, defendants failed to file reply to
the notice of motion. Hence, it is proceeded without reply.
4. Heard the learned advocate for the plaintiff and defendant
no. 1(a) and defendant no.2. Perused the record.
5. It is contention of the plaintiff that due to the mistake and
inadvertence on the part of the advocate, the writ of summons could
not be served on defendants no. 1(a), 1(b) and defendant no.3.
Therefore, the matter was dismissed against them
vide an order dated
05/12/2017. During the course of argument, the learned advocate for
defendants no.1(a) and defendant no.2 asked to pass suitable order.
6. It is well settled that, for the mistake or negligence on the
part of the Advocate, the party should not be suffered. The plaintiff has
filed the suit for declaration to declare that the defendant no.1 has no
right, title or interest in the suit property and also to declare the gift
-- 2 of 4 --
3 Ord. in NM no 580 of 2018, in Suit no. 3414 of 2010
deed dated 29/05/2009 executed by defendant no.1 in favour of
defendant no.2 and 3 void, ab-initio, illegal and not binding upon the
plaintiff. The plaintiff is claiming to be exclusive owner of the suit flat
and is in possession of the suit flat. Whereas, defendants came with the
case that the defendant no.1 has contributed half of the amount to
purchase the suit flat. In such circumstances, the plaintiff has shown
substantial interest in the matter. Defendants no.1 (a), 1(b) and
defendant no.3 are necessary parties to adjudicate the matter on merits
finally. Therefore, the plaintiff has made out case for setting aside
dismissal order for noncompliance of Order of service on defendants.
Hence, I pass the following order: -
ORDER
Notice of Motion No. 580 of 2018 stands allowed and made
absolute in terms of prayer clause (a) to (c) subject to payment of cost
Rs. 2000/- paid to DLSA, Mumbai within 4 weeks from the date of
order.
Needless to say, payment of cost is a condition precedent
failing which order stands automatically vacated.
Upon payment of cost issue fresh writ of summons to
defendants no. 1(a), 1(b) and defendant no.3.
Notice of motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.08.12.2023 (C.R. No.1)
Dictated on : 08.12.2023
Transcribed on : 11 & 12.12.2023
Checked & Signed on : 12.12.2023
-- 3 of 4 --
4 Ord. in NM no 580 of 2018, in Suit no. 3414 of 2010
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 08.12.2023 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 08.12.2023
JUDGMENT/ORDER signed by P.O. on 12.12.2023
JUDGEMENT/ORDER uploaded on 12.12.2023
-- 4 of 4 --