Order 1

Order Details: Notice of Motion
Pdf Text: Notice Of Motion No.712/2018 ..1.. In Suit No.2036/2010
CNR NO.MHCC010026432018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 712 OF 2018
IN
L.C. SUIT NO. 2036 OF 2010
1. Mr. Sufiyan Ishaque Qureshi,
Aged : 32 Years,
Residing At : Room No. 29,
2nd Floor, Sakina Manzil,
Opp. Durani Chowk, Kurla (West),
Mumbai 400 070.
2. Smt. Sabitunnisa Ishaque Qureshi,
Aged : 56 Years,
Residing At : Room No. 22,
2nd Floor, Sakina Manzil,
Opp. Durani Chowk, Kurla (West),
Mumbai 400 070. ...Plaintiffs
Versus
Brihanmumbai Municipal Corporation,
Having their Head Officer At :
Nagaralika Bldg., Nagarpalika Marg,
Opp. C.S.T. Railway Station,
Mumbai 400 001. ...Defendant
Appearance :
Mr. Taral, Advocate for Plaintiff.
Ms. Mhatre, Advocate for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI A. N. MARE (C.R.No.11)
DATE : 04 NOVEMBER, 2019.
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Notice Of Motion No.712/2018 ..2.. In Suit No.2036/2010
O R A L O R D E R
The plaintiffs have requested to set aside an order dated
28.01.2018 by virtue of which their L.C. Suit No. 2036/2010 was
dismissed. They have sought restoration of said suit.
2. The notice of motion is supported with an affidavit of
plaintiff No. 2 wherein she has stated that the matter was posted for
recording evidence on 28.01.2018. However, due to unavoidable
circumstances she was unable to appoint a new advocate. Due to her ill
health. She was also advised bed rest and so was unable to appear
before this Court on said date. She was under treatment from
26.12.2017 to 09.02.2018 and the doctor has advised further 15 days
complete bed rest. The plaintiff has now engaged a new advocate Mr.
Taral to proceed with the matter. The plaintiff was regularly appearing
in the matter. She has filed the affidavit in lieu of examination in chief
and compilation of original documents. The matter was listed for
admission and denial of documents.
3. Respondent Corporation has objected the notice of motion
on the ground that the suit itself has become infructuous due to
demolition of the suit premises by the owner itself. This fact is
suppressed by the plaintiffs. The cause of action does not survive and
the suit need not be restored. In view of order dated 11.02.2015 the
suit was expedited by this Court. On 29.09.2016 examination in chief
of the plaintiff was recorded and thereafter plaintiff and her advocate
remained absent from 11.11.2016 till passing of order. The plaintiff has
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Notice Of Motion No.712/2018 ..3.. In Suit No.2036/2010
produced fraudulent medical certificate that too a photocopy of it. The
plaintiff has come with a false and concocted story. There is no ground
made out to set aside the order dismissing the suit.
4. Perused. Heard.
5. The roznama dated 20.01.2018 reveals that neither the
plaintiff nor her advocate remained present when the suit was called on
for hearing and hence, the suit was dismissed. The advocate for
defendant however was present on said date.
6. The roznama dated 11.02.2015 reveals that hearing of this
suit is expedited by this Court. This was done since the notice of
motion was also directed to be heard with the suit. Proceeding
indicates that Adv. Taral was representing the plaintiffs in the original
suit also. Proceeding further indicates that on 13.04.2017none
appeared for the plaintiff. On 13.04.2017 it was informed to the Court
by plaintiff No. 2 that her advocate had expired, may be Adv. Ashfaq on
whose behalf Adv. Mr. Taral was appearing. However, thereafter on
06.01.2018 as well as 20.01.2018 the plaintiffs remained absent.
7. The reason for absence of only plaintiff No. 2 is stated in
the affidavit filed in support of notice of motion. The reason for such
absence is that the doctor had advised her bed rest. The original
medical certificate is not on record. Photocopy of medical certificate by
one Dr. Mane having the degree of B.SC. and L.C.E.H. mentions that
plaintiff No. 2 was suffering from Lumber Spondilisis and was under his
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Notice Of Motion No.712/2018 ..4.. In Suit No.2036/2010
treatment from 26.12.2017 till 09.02.2018. He had advised her 15 days
bed rest from 09.02.2018 onwards.
8. The medical certificate is a photocopy. The degree held by
the doctor raised a doubt whether he was in a position to treat the
plaintiff for Lumber Spondilisis. Medical Certificate also does not reveal
that on 20.01.2018 plaintiff No. 2 was not in a condition to appear
before the Court since the bed rest is advised for 15 days from
09.02.2018 onwards. Thus, the ground of illness of plaintiff No. 2 and
the medical certificate does not inspire confidence.
9. Plaintiff No. 1 was aged 28 years at the time of filing of the
suit. He could have looked after the suit in absence of plaintiff No. 2.
However, there is no whisper in the affidavit of plaintiff No. 2, filed in
support of notice of motion, as to why plaintiff No. 1 did not appear
before the Court atleast to seek an adjournment.
10. Considering totality of the circumstances, it is evident that
despite sufficient opportunities to the plaintiffs they did not prosecute
the suit diligently. No sufficient reason is made out by the plaintiffs for
their absence on 20.01.2018 the date on which the suit was dismissed
in default. In view of this, I hold that the notice of motion is devoid of
merits, it can not be allowed merely on the submissions that the senior
advocate died during pendency of the suit, since advocate Mr. Taral was
looking after the matter as can be seen from the roznama in the suit. In
the result, I hold that notice of motion can not be allowed. Hence,
following order.
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Notice Of Motion No.712/2018 ..5.. In Suit No.2036/2010
ORDER
Notice of Motion No. 712/2018 is dismissed with costs.
(A. N. MARE)
Judge,
Date : 04.11.2019 City Civil Court, Gr. Mumbai.
Dictated On : 04.11.2019
Transcribed on : 06.11.2019
HHJ Signed on : 07.11.2019
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Notice Of Motion No.712/2018 ..6.. In Suit No.2036/2010
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
07.11.2019 5.41 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 04.11.2019
Order signed by P.O. on 07.11.2019
Order uploaded on 07.11.2019
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