Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.881 OF 2019
IN
SHORT CAUSE SUIT NO.248 OF 2018
Viswanathan Nair S/o. Narayan Nair … Plaintiff
V/s.
Pooja Prajwalant Satpute & Anr. … Defendants
Appearances:
Ld. Adv A.A. Siddiqui for plaintiff.
Ld. Adv. Rachure for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R.No.20)
DATED : 20th JULY, 2019
ORDER
Plaintiff has taken out this notice of motion for removing
the suit from the dismissal caption.
2. It is argued that on 10.09.2018 suit was listed for filing
evidence affidavit on behalf of plaintiff. On that day plaintiff was
present in the Court alongwith affidavit. However, his Ld. Counsel was
held up in another matter and was on the way to the Court. Plaintiff
went out of Court for calling the advocate. It seems that meanwhile the
matter was called out and noticing that none is present it is listed in the
caption of dismissal. In fact plaintiffs affidavit of evidence was ready.
Plaintiff is ever ready to proceed with the evidence. There is no
MHCC01-002353-2019
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NM 881/2019 .. 2 .. Suit No.248/2018
intention of prolonging the matter. Therefore, plaintiff may be allowed
to lead evidence by taking out the suit for dismissal caption.
3. The Ld. Counsel for defendant has resisted this application
on the ground that despite sufficient opportunity plaintiff has failed and
neglected to file evidence affidavit. Plaintiff was intending to prolong
the matter. Therefore, plaintiff has not filed evidence affidavit. As
delay is intentional one, suit may be dismissed.
4. It is the contention of plaintiff that on 10.09.2018 plaintiff
was present in the Court. However, it is not reflected in the roznama.
Roznama shows absence of plaintiff. Therefore there is no force in the
contention of plaintiff that on that day he was present in the Court. It is
his further contention that his evidence affidavit was ready but he could
not file it as his advocate was not present. In absence of contrary
submission I have no reason to disbelieve plaintiffs contention.
Moreover, when plaintiff is ready to lead with the evidence, there is no
reason for Court to deny. This is so because as far as possible, matter
must be decided on merit by giving full and fair opportunity to the
parties. Therefore, I am of the opinion that plaintiff can be allowed to
lead evidence. At the most while removing the suit from dismissal
caption certain cost can be imposed. Accordingly the order.
O R D E R
1. NM No.881/19 in SU No.248/18 is hereby allowed.
2. Suit No.248/2018 (Commercial Suit No.142/18) is
hereby taken out from dismissal caption on plaintiff paying
cost of Rs.2,000/ to the defendant on or before next date
or to deposit in the Court.
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NM 881/2019 .. 3 .. Suit No.248/2018
3. On compliance of cost order plaintiff is at liberty to file evidence
affidavit.
(Milind V. Kurtadikar)
Judge, (C.R.No.20)
Dt.: 20/07/2019 City Civil Court, Gr. MUMBAI
Dictated on : 20.07.2019
Transcribed on : 20.07.2019
Signed on : 22.07.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
23.07.2019 11.30 a.m. Sanjay B. Kaskar
(StopGap Stenographer)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
20.07.2019.
Judgement/order signed by P.O on 22.07.2019.
Judgement/order uploaded on 23.07.2019.
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