Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 SC1969.15
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.876 of 2019
In
S.C. Suit No.1969 of 2015
Chetna Rajendra Kansara ..Applicant/Plaintiff
V/s.
Shashikant Balkrishna Mistry
& anr. ..Respondents/Defendants
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 17th October,2019
(C.R.No.19)
Advocate Ms.Bhagyashree Vishal I/b. R.V. Sankpal & Associates for
applicant/plaintiff.
Advocate Ms.Pranali Dixit i/b. Sean Wass Dew for respondent.
O R A L O R D E R
The present Notice of Motion has been preferred by
applicant/plaintiff to set aside dismissal order of S.C. Suit No.1969/15
dated 3rd May,2018 passed by this court.
2 According to applicant/plaintiff, a suit for mandatory
injunction and direction bearing S.C. Suit No.1969/15 was filed by him
against defendants. This court had directed the parties to maintain status
quo in respect of the suit premises. He was represented by his advocate
and he at the relevant time was staying in U.S.A. On 3rd May,2018 this
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court dismissed the suit for want of prosecution. According to him, at the
relevant time he was in U.S.A. and his advocate could not appear in the
suit leading to the dismissal of the suit.
3 The applicant states that when he returned from U.S.A. on 15th
January,2019 and inquired with his advocate about status of his case, he
came to know about dismissal of the suit. His advocate also informed that
as he (advocate) was under depression, he was not attending the hearing
and could not remain present on 3rd May,2018. In the circumstances, his
absence was not deliberate. He has got a very strong case on merits. In
these circumstances, he prays that the present Notice of Motion be made
absolute.
4 The Notice of Motion is resisted by respondents/defendants by
filing their affidavit in reply (Exh.6). According to them, frivolous grounds
as to nonappearance of the applicant's advocate are raised without filing
any documentary evidence to that effect. Therefore, the Notice of Motion
deserves to be dismissed with costs.
5 Ms.Bhagyashree Vishal, learned counsel for applicant/
plaintiff, has reiterated the contentions raised in the application in support
of Notice of Motion. The learned counsel then urged that the applicant/
plaintiff be allowed to contest the suit on merits and no prejudice would be
caused to respondents/defendants.
6 Ms.Harshali Parab, learned counsel for respondents/
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defendants, on the other hand, submitted that the grounds raised in the
Notice of Motion are not supported by any documents and if at all the
Notice of Motion is to be allowed then it should be allowed with heavy
cost.
7 The applicant/plaintiff has filed on record the air tickets
which show that he landed in India from Chicago on 15th January,2019.
According to him, his advocate was under depression and could not attend
the proceedings and, therefore, suit came to be dismissed. One cannot be
unmindful of the fact that the present applicant in the said suit was
plaintiff and had brought the suit for mandatory injunction and possession
of the suit premises. In such circumstances, he could not have gained
anything by remaining absent deliberately. Moreover, for the fault of an
advocate, a party cannot be allowed to suffer. It is always desirable that
the rights of the parties should be decided on merits and the court should
be guided by paramount consideration of not depriving the litigants of
their rights on merits. No prejudice would be caused to the defendants if
the present Notice of Motion is allowed inasmuch as both the parties will
have equal opportunities to defend their case.
8 For the aforesaid reasons, this court is inclined to allow the
Notice of Motion. Hence, I pass the following order:
O R D E R
Notice of Motion No.876/19 is allowed.
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S.C. Suit No.1969/15 dismissed in default on 3rd May,2018 is
restored to its original position.
S.C. Suit No.1969/15 shall proceed further in accordance with
law.
17/10/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 17/10/2019
Transcribed on : 17/10/2019
Signed by HHJ on : 17/10/2019
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5 SC1969.15
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 17/10/2019 (5.30 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 17th October,2019
Order signed by P.O. on 17th October,2019
Order uploaded on 17th October,2019
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