Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 791/18 Suit No.4828/08
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.791 OF 2018
IN
SUIT NO. 4828 OF 2018
(CNR NO. MHCC010028442018)
Ganga Prasad Mishra & Others …. Plaintiffs/Applicant
IN THE MATTER BETWEEN
Ganga Prasad Mishra & Others …. Plaintiffs
Versus
Shah Babulal Khimaji & Others ….Defendants
Appearance:
Shri. Sagar Talekar, Advocate for plaintiff.
Shri. Dinesh Shah, Advocate for defendant 1(e).
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 01/08/2019
ORAL ORDER
1) The Notice of Motion is filed by the plaintiff to
condone the delay of 130 days to carryout amendment as per the
order passed in Chamber Summons No. 1515/2016 dated
11/9/2017. The Chamber Summons is supported by affidavit of
Ajaykumar Mishra. He on oath stated that the delay is caused to
carryout the amendment because somewhere in the 2007 shifted
their native place at Uttar Pardesh. They appointed Haresh Shah
as their constituted attorney. The constituted attorney should
have carried out the amendment but he did not do so. The
plaintiffs contacted in the last week of December 2017 to their
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advocate and came to know about their order. Therefore they
have changed the constituted attorney and prayed to condone the
delay to amend the plaint.
2) Defendant No.1(e) Ramesh Babulal Shah filed reply
and has objected for condoning the delay. The defendants stated
that there is delay of 185 days and not 130 days. There is
collusion between plaintiffs and proposed defendant to deprive
these defendants of their legitimate right. The plaintiffs have sold
the suit property unlawfully twice pending the suit. The
defendants denied the reason stated in Notice of Motion to
condone the delay.
3) Heard Advocate Shri. Sagar Talekar for plaintiff and
Advocate Shri. Dinesh Shah for defendant No.1(e).
4) The plaintiff is seeking to condone the delay caused
to amend the plaint and bring on record the proposed defendant
No.2 as per order passed in Chamber Summons no.1515/2016 on
11/9/2017. The reasons stated on oath by Ajyakumar Mishra is
that they left the city in the year 2007 and went to native place at
Uttar Pradesh. They appointed constituted attorney. He did not
represent the plaintiff properly and failed to carryout
amendment.
5) On perusal of plaint verification clause the plaintiff
no.1 Gangaprasad Mishra has filed the suit on 4/9/2008. In the
title the residential address of all the plaintiff is that of Borivali
Mumbai. Therefore the contention in the Notice of Motion that
they left in the year 2007 to Uttar Pradesh is not supported by
any documentary evidence. It is only the oral affirmation of Ajay
Mishra that they have shifted at Uttar Pradesh.
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6) Advocate Shri. Talekar for plaintiff has shown xerox
copy of power of attorney from the court file to show that the
power of attorney was given to Haresh T. Shah. The said power
of attorney does not state about the suit filed in the court and it
also does not disclose whether it is in respect of the present suit
or no. The plaintiffs themselves have appeared in the court and
has filed the suit. Therefore the contention of the plaintiff stating
the reason for delay cannot be accepted. Notice of Motion is not
tenable as the plaintiff has not stated the true facts.
7) The plaintiff would have filed the suit through the
above power of attorney holder. However, the suit is filed by the
plaintiffs themselves. Hence, the reason shown in the affidavit
cannot be considered to condone the delay to amend the plaint.
The plaintiff were present in the year 2008. Therefore, they have
filed the suit against the defendants. In the title of the plaint also
the plaintiffs are showing their address as “All having address as
Shanti Ashram, beside LIC Nagar, Eksar village, Borivali West,
Mumbai 400092.”
8) Advocate Shri. Dinesh Shah has objected the
maintainability of the Notice of Motion on the ground that the
defendant No.1(e) is not joined as a party to the Notice of
Motion. Advocate Shri. Talekar for plaintiff stated that there is
typographical error and by mistake he was left out in the Notice
of Motion. The defendant no. 1(e) Raemesh Babulal Shah has
only filed reply to the Notice of Motion. He is aware of the Notice
of Motion. There is technical aspect due to the above error the
defendant No.1 (e) is having knowledge of the Notice of Motion.
Therefore he filed the reply. The para 1 of the affidavit of Ramesh
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Babulal Shah shows that he is filing reply for himself and on
behalf of defendant No. 1(a) to 1(d) and 1(f). Hence the said
technical aspect cannot be considered in respect of
maintainability of the notice of motion.
8) The plaintiff has failed to show his sufficient cause to
condone the delay of 130 days. There is nothing on record to
show that the alleged constitute attorney Haresh Shah was
appointed by plaintiff to look after the proceeding on behalf of
the plaintiffs. The power of attorney on record does not show
that he has been authorised by the plaintiffs to follow up the
proceedings. The plaintiff themselves have filed the suit. The
plaintiff's chamber summons was allowed on 11/9/2017. The
plaintiff should have amended the plaint by bringing on record
the proposed defendant No.2 on or before 26/9/2017. The Notice
of Motion is filed on 21/3/2018. Therefore, there is delay of 175
days. The reason shown for condonation of delay of 175 days
cannot be accepted. The Notice of Motion is not tenable. Hence,
pass following order:
ORDER
1 The Notice of Motion is rejected.
2 Accordingly notice of motion is
disposed of.
(S.S. Nagur)
Date : 01/08/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 01/08/2019
Transcribed on : 01/08/2019
Signed on : 01/08/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
02/08/2019 & 10.50 a.m. : Mrs. Shobha Ashok Shekade
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 01/08/2019
Order
Judgment/Order signed by the P.O. on : 01/08/2019
Judgment/Order uploaded on : 02/08/2019
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