Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1008 OF 2020
(CNR NO.MHCC010027942020)
IN
S. C. SUIT NO.2288 OF 2015
Rajkumar Lalchand Pahuja ).. Plaintiff
V/s.
Shri. Deepak Lalchand Pahuja & Anr. ).. Defendants
Appearances :
Ld. Adv. Sandeep Maurya for plaintiff.
None for Defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 28/11/2022.
ORDER
1 This notice of motion is taken out by plaintiff for
restoration of suit with condonation of delay. Instant suit is filed for
partition and due to absence of the plaintiff on the date fixed for
adducing evidence, it was dismissed. It is the contention of the plaintiff
that the Issues were framed on 13/06/2018. He applied for deletion of
Issue No.3 on 21/11/2018 and on the next date, the matter was fixed
for adducing evidence as last chance and on 15/12/2018, the suit came
to be dismissed due to absence of plaintiff.
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2 It is the contention of the plaintiff that he had applied for
one motion in the suit which came to be dismissed by this Court against
which he filed an appeal before the Hon'ble High Court and then before
the Hon'ble Supreme Court. This matter was disposed off and the
matter was fixed for issues.
3 It is his further contention that there was one litigation
under SARFAESI Act filed by one City Bank claiming that the suit flat
was mortgaged with the bank by Defendant No.1 and mother against
the loan, in which the said flat came to be attached against which the
plaintiff has initiated the proceeding and was pursuing the same. The
said proceeding resulted in his favour by judgment in Writ Petition
No.12544 of 2017 on 05/12/2019. After the said judgment, he
contacted his counsel to inform about the dismissal of the instant suit
and advised to get restored the first suit. It is the contention of plaintiff
that his absence was not intentional but because of his engagement in
another proceeding and prayed for restoration of suit with condonation
of delay.
4 The notice of this motion was served upon the defendants
vide service report (Exh.09), but they remained absent. Consequently,
the matter proceeded without their presence.
5 Heard the Ld. Counsel of plaintiff at length. Perused the
record. It reveals that after framing of issues, the suit was dismissed on
its fourth date. In between that, one application for deletion of Issue
No.3 was also applied and same was dismissed, though the plaintiff was
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absent for two dates, it was too hurry to dismissed the suit. It manifests
from the record that the parties to the suit has approached up to the
Hon'ble Supreme Court and there was simultaneous proceeding against
the bank or by the bank in respect of the suit property. Therefore, the
contention of plaintiff that he was engaged in the simultaneous
proceeding appeared to be probable, thus, I am of the view that the
plaintiff has succeeded to make out a case to restore the suit to its
original stage and also assigned sufficient reason for the delay.
6 Considering the above discussion, I am of the view that the
notice of motion deserves to be allowed. In the result, I pass the
following order :
ORDER
1. Notice of Motion No.1008/2020 in S. C. Suit No.2288/2015, is
hereby allowed.
2. S. C. Suit No.2288/2015, stands restored to its original stage.
4. Notice of Motion disposed of accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 28/11/2022 C.R. No.03, Gr. Mumbai
Dictated on : 28/11/2022
Typed on : 28/11/2022
Signed on :
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“Certified to be true and correct copy of the original signed order”.
28/11/2022 (Ms. Sonali S. Sawant)
at about 5.00 p.m. Typist
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 28/11/2022
Order signed by Hon'ble Judge on : 28/11/2022
Order uploaded on : 29/11/2022
at about 5.00 p.m.
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