Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 961 OF 2020
(CNR NO. MH CC01-002630-2020)
IN
NOTICE OF MOTION 4798 OF 2018
IN
S.C.SUIT NO. 4785 OF 2011.
1. Zaibunnisa Anwar Sayed ]
and Others. ].. Applicants/Plaintiffs.
V/s.
1. Milind Balchandra Nikarge, ]
and others. ]..Defendants.
Advocate Ms. Apoorva Kulkarni for the plaintiff.
None for the defendants.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 15th FEBRUARY 2023
ORAL ORDER
This Notice of Motion has been taken out by the plaintiffs
for restoration of Notice of Motion No.4798 of 2018 and condonation of
delay, if any.
2. The plaintiff No.4 has filed affidavit in support of Notice of
Motion, wherein he has stated that the Suit No. 4785/2011 filed by the
plaintiffs is dismissed on 26.10.2018. Thereafter, the plaintiffs filed the
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Notice of Motion No. 4798 of 2018 for restoration of the Suit, but the
plaintiffs failed to prove the service of Notice of Motion. Hence, Notice
of Motion No. 4798 of 2018 is also dismissed for default on 20.08.2019.
He further submitted that there is delay for filing this Notice of Motion
and pray for condonation of delay. He further submitted that the
another suit is pending in the same Court and that suit was also
dismissed and it was restored. The parties and properties are same in
both the suit. If this Notice of Motion is allowed, it will not harm to the
other party. But if Notice of Motion is not allowed, the plaintiffs will
deprive from his right. Hence, prayed for allowing Notice of Motion.
3. The defendants have not filed their reply and denied the
contentions of Notice of Motion. The delay can be compensated in
terms of money.
4. Read Notice of Motion, affidavit and plaint. Perusing
documents on record, it appears that the plaintiff has filed this suit for
declaration and injunction. The defendants would have filed his written
statement within 30 days from the date of of service of writ of
summons. It appears that the defendant No.5 has not filed his written
statement within time. The delay is not intentional. If this Notice of
Motion is allowed no prejudice would be caused to the plaintiff.
5. Considering the nature of Notice of Motion, it appears that
the plaintiffs’ Notice of Motion is dismissed for want of prosecution.
Now the plaintiffs served the copy of the Notice of Motion to the
defendants, it will better to decide Notice of Motion No. 4798/18 on
merits. Therefore, the reason mentioned in the affidavit and for the
interest of justice, the opportunity be given to plaintiffs. No doubt,
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there is delay on the part of the plaintiffs and it caused delay in the
suit, it can be compensated in terms of money. Therefore, I have come
to conclusion that the Notice of Motion No. 4798 of 2018 needs to be
restored accordingly. Thus, Notice of Motion is to be allowed by
imposing costs upon plaintiffs. With this, I proceed to pass the following
order:-
ORDER
1. Notice of Motion No. 961 of 2020 is hereby
allowed subject to the payment of costs of Rs.200/-
(Rupees Two Hundred only) payable by the plaintiffs
jointly to each of the defendants on or before next
date.
2. On payment of costs, delay be condoned and
Notice of Motion No. 4798 of 2018 be restored to its
original stage.
3. Failure to make compliance, Notice of Motion will
be dismissed automatically.
4. Notice of Motion No.961 of 2020 is disposed of
accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 15/02/2023 Gr. Bombay.
Dictated on : 15/02/2023
Transcribed on : 16/02/2023
Signed on : 16/02/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16/02/2023 At 4.00 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
15/02/2023
Judgment/Order signed by P.O. on 16/02/2023
Judgment/Order uploaded on 16/02/2023
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