Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 991-2020 in NM1720-14 in LC SU 1073-14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
NOTICE OF MOTION NO. 991 OF 2020
(CNR NO. MHCC01-002782-2020)
IN
NOTICE OF MOTION NO.1720 OF 2014
IN
L.C. SUIT NO. 1073 OF 2014
Devendra Chunnilal Shah .... Plaintiff
Versus
MCGM & Another .... Defendants
CORAM: H.H.JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 27th October, 2021.
Appearance:
-
Ms. Rubia Taneja; Ld Advocate for plaintiff.
Smt. Vidya Vyavahare; Ld Advocate for defendant No.1.
Ms. Labde; Ld Advocate for defendant No.2.
ORAL ORDER
1) By the present notice of motion plaintiff prayed to condone
the delay in taking out present notice of motion and restore notice of
motion No.1720/14 by setting aside the order dtd. 16/9/2019
dismissing Notice of Motion No.1720/14 for want of prosecution and
also to restore the ad interim order dtd. 11/4/2014 in notice of motion
no.1720/14.
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2) Perused the notice of motion, affidavit in support of same,
documents annexed with the affidavit, affidavit in reply of defendant
No.2 and record. Heard Ld Advocate for plaintiff, Ld Advocate for
defendant No.1 and Ld Advocate for defendant No.2.
3) Ld Advocate for plaintiff argued that plaintiff was attending
the matter regularly. On 16/9/2019 the wife of plaintiff was not keeping
well and plaintiff was required to accompany his wife to the doctor for
treatment. Plaintiff had informed the said fact to his advocate and his
advocate had informed him that after attending fixed matter at 3 p.m. in
the Hon’ble High Court she would attend present matter. The Advocate
for plaintiff attended the matter on 16/9/2019 and when she reached
she was informed that matter was adjourned to 15/11/2019 and at that
time she was not informed about dismissal of notice of motion. On
15/11/2019 when plaintiff attended the court at 2.45 p.m. he learnt that
matter was in the morning session and it was adjourned for hearing on
17/1/2020 and at that time also staff of the court had not informed
about the dismissal of the notice of motion nos.1720/14 and 621/17 on
16/9/2019. On 16/1/2020 while checking the case status the Advocate
for plaintiff learnt about the dismissal of notice of motion No.1720/14
and 621/17 for want of prosecution. The notice of motion No.1720/14
was not for hearing on 16/9/2019 and only notice of motion no.621/17
was kept for hearing. Therefore, plaintiff satisfied that there was
sufficient cause for his non appearance on 16/9/2019 and there is
sufficient cause for condonation of delay in taking out present notice of
motion. Therefore, Ld Advocate for plaintiff prayed that notice of motion
be made absolute.
4) Ld Advocate for defendant No.1 argued that on 16/9/2019
plaintiff and his advocate were absent and no application for
adjournment was filed by plaintiff. Therefore, court rightly dismissed the
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notices of motion for want of prosecution. The plaintiff failed to explain
the delay in taking out present notice of motion and failed to satisfy the
court that there was sufficient cause for his non appearance on
16/9/2019. Plaintiff was negligent in prosecuting the suit. While
dismissing notice of motion no.1720/14 no specific order was passed
that on restoration of the said notice of motion ad interim relief will be
restored. Therefore, ad interim relief cannot be restored. Therefore, Ld
Advocate for defendant No.1 submitted to dismiss present notice of
motion.
5) Ld Advocate for defendant No.2 argued that plaintiff failed
to explain the delay in taking out present notice of motion and also
failed to show that there was sufficient cause for his non appearance on
16/9/2019. The conduct of the plaintiff reveals that it is the case of
negligence on the part of plaintiff and his advocate. Advocate for
plaintiff could have informed the court in first session her difficulty to
attend the court in second session on 16/9/2019. Moreover, it was the
duty of plaintiff and his advocate to check what happened in the
proceeding on 16/9/2019. Earlier order was not got extended by the
plaintiff on every date. Therefore, there is neither sufficient cause for
condonation of delay nor there is any sufficient cause for restoration of
the notice of motion by setting aside the order of dismissal as prayed.
Therefore, Ld Advocate for defendant No.2 submitted to dismiss the
notice of motion.
6) Perusal of record reveals that plaintiff had taken out notice
of motion no.1720/14 for interim relief and as per order dtd. 11/4/2014
ad interim relief in terms of prayer clause (a) was granted. It appears
that on 16/9/2019 matter was kept for hearing on notice of motion and
on that day nobody was present for plaintiff and Advocate for defendant
Nos.1 and 2 were present. It appears that therefore on 16/9/2019 notice
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of motion no.1720/14 and notice of motion no.621/17 were dismissed
by the court for want of prosecution.
7) Admittedly, present notice of motion was taken out by
plaintiff on 14/2/2020 and therefore, there is delay in taking out present
notice of motion. The perusal of roznama reveals that prior to
16/9/2019 and after 16/9/2019 on most of the dates plaintiff or his
advocate were present. It appears that on 15/11/2019 board was
discharged as court was on leave and matter was adjourned on
17/1/2020.
8) The plaintiff has stated the cause of delay and cause for his
non appearance and non appearance of his advocate on 16/9/2019 at
2.45 p.m. as argued by Advocate for plaintiff in his affidavit in support of
notice of motion. Though the defendant No.2 denied the above cause
vide its affidavit in reply, it has not brought on record any material so as
to disbelieve the said cause. It is settled proposition of law liberal
construction of the expression sufficient cause in Sec.5 of the Limitation
Act and Rule 9 of Order 9 of the Code of Civil Procedure is intended to
advance substantial justice. The plaintiff has filed the present suit and
thereby challenged the action of demolition of suit premises by the
defendants and also prayed for mandatory injunction. Considering the
fact that the roznama prior to 16/9/2019 and after 16/9/2019 reveals
that on most of the dates advocate for plaintiff or plaintiff was present,
prima facie reveals that the plaintiff was not negligent in prosecuting the
suit or notice of motion. It is also settled proposition of law that a
litigant should not suffer for the lapses on the part of his advocate. The
cause for delay in taking out present notice of motion and for non
appearance on 16/9/2019 appears to be bonafide and same does not
appear intentional or malafide. Considering the nature of suit and the
relief sought in the notice of motion no.1720/14 in order to give fair
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opportunity to the plaintiff in the interest of justice it appears necessary
that the notice of motion should be restored. Therefore, considering the
matter on record and above discussion court is satisfied that plaintiff has
explained the delay properly and there is sufficient cause for
condonation of delay in taking out the present notice of motion. Court is
also satisfied that there was sufficient cause for non appearance of the
plaintiff and his advocate when the notice of motion was called up for
hearing.
9) Considering the above discussion and matter on record in
the interest of justice it will be appropriate to condone the delay in
taking out present notice of motion and to restore the notice of motion
no.1720/14 by setting aside its dismissal order dtd. 16/9/2019 for want
of prosecution. However, perusal of order dtd. 16/9/2019 reveals that at
the time of dismissing the notice of motion no.1720/14 for want of
prosecution court has not passed specific order that on restoration of
notice of motion no.1720/14 the ad interim order dtd. 11/4/2014 shall
be restored. Therefore, in the absence of above specific order the order
dtd.11/4/2014 will not restore automatically and therefore, plaintiff is
not entitled for the relief of restoration of order of ad interim relief dtd.
11/4/2014 as sought. Therefore, present notice of motion deserves to be
partly allowed. Hence, court proceeds to pass following order:-
ORDER
1) Notice of Motion No. 991/2020 is partly allowed.
2) The delay in taking out present notice of motion is
condoned and order dtd.16/9/2019 to the extent of
dismissing notice of motion no.1720/14 for want of
prosecution is hereby set aside and notice of motion no.
1720/14 is restored to its original stage.
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3) Notice of Motion No. 991/2020 is disposed of acordingly.
Date:27/10/2021. (K.P. Kshirsagar)
Judge
C.R.No.5
City Civil Court
Gr. Bombay
Dictated & typed on : 27/10/2021.
Checked on : 27/10/2021.
Signed by HHJ on : 27/10/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/11/2021. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
27/10/2021.
JUDGMENT/ORDER signed by P.O.
on
27/10/2021.
JUDGMENT/ORDER uploaded on 12/11/2021.
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