Final Order 2

Order Details: Notice of Motion
Pdf Text: MHCC010029182019 Presented on 14/03/2019
Registered on 14/03/2019
Decided on 02/05/2024
Duration 05Y: 01M: 19D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
NOTICE OF MOTION NO. 1120 OF 2019
IN
SUMMARY SUIT NO. 1183 OF 2015
Industrial Esters & Chemicals
Private Limited Company ]...Plaintiff
V/s.
1. Mr. Mehfooz Khan & Anr. ]...Defendants
Appearance:-
Ld. Adv. Mr. O. P. Singh for plaintiff.
Ld. Adv. Mr. M. R. Chauhan for defendants.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 02/05/2024
O R D E R
01] This notice of motion is filed by the defendants for setting
aside ex-parte evidence order dated 29/01/2019.
02] This notice of motion is taken out by defendants on
14/03/2019. The Ld counsel for the plaintiff has filed reply to the said
notice of motion and resisted it.
03] Ld. counsel for the defendants submitted that that they
have filed summary suit No. 4667/2013 against plaintiff for recovery of
amount and it is pending. Thereafter, plaintiff has filed present suit
against defendants. The earlier counsel of the defendants died in the
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SUM SU No.1183/2015
month of February, 2017. The case papers of this proceedings and suit
filed by defendants are not traceable and said documents are missing.
Thereafter, defendants engaged new counsel on 12/12/2017 however,
the Court has refused to take vakalatnama on record. Further, on
23/04/2018, again vakalatnama on behalf of the defendants was
tendered and it was taken on record. Therefore, it was not possible to
prepare written statement. Even, due to death of elder brother of
defendant's counsel on 11/09/2018, they could not take the steps. The
matter was not displayed on board on two to three dates and it was
transferred from one Court to another Court. The defendants were not
aware about death of their counsel. The delay is not intentional one and
it was beyond control of defendants. Therefore, it is necessary to set
aside order dated 29/01/2019 for ex-parte evidence. Hence, Notice of
Motion may be allowed.
04] On the other hand, the plaintiff has submitted that
vakalatnama of the defendants was refused as it was not filed within
limitation. Further, transfer of case from one Court to another Court is
not a ground to set aside order dated 29/01/2019. The defendants have
taken out this notice of motion only to prolong the matter, as it was
dismissed in default and it has been restored. The suit is already
proceeded ex-parte against defendants. The plaintiff is a senior citizen
and matter is pending since 2015 therefore, notice of motion may be
dismissed.
05] Perused NM, reply and record. Heard both the parties. It
appears that plaintiff has filed suit for recovery against defendants. It is
the contention of the defendants that they had filed vakalatnama on
12/12/2017 which was not taken on record. On perusing rozanama
dated 12/12/2017, it appears vakalatnama of defendants was not taken
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SUM SU No.1183/2015
on record as it was not filed within limitation. Further, on 23/04/2018
vakalatnama of defendants was taken on record. The defendants have
not filed any documents in support of their contention that earlier
counsel is expired and further there was sudden death of brother of
counsel and illness of counsel. However, defendants have filed case
history to show that case was transferred from one Court to another
Court. Defendants had taken out notice of motion No.1120/2019 which
was dismissed on 31/08/2019. Therefore, defendants have taken out
Chamber Summons No.1748/2019 for restoration of Notice of Motion
No.1120/2019 and Notice of Motion No. 3628/2019 to recall ex-parte
evidence order dated 21/12/2018. Further, Notice of Motion No.
3628/2019 and Chamber Summons No.1748/2019 came to be
dismissed for default on 22/09/2022. Therefore, defendants have filed
Notice of Motion No. 4451/2022 to set aside order dated 22/09/2022.
The said Notice of Motion came to be allowed on 28/11/2022 and
Notice of Motion No. 1120/2019 came to be restored subject to costs of
Rs. 20,000/-. The defendants have paid said costs.
06] The rozanama dated 19/08/2017 shows that order was
passed to proceed ex-parte against defendants. On perusing Notice of
Motion No.1120/2019, it appears that defendants have prayed to set
aside ex-parte evidence order dated 29/01/2019. It is pertinent to note
that thereafter matter was adjourned for ex-parte evidence on
23/04/2018, 07/08/2018, 21/12/2018, 29/01/2019 and 11/02/2018.
Plaintiff has filed his evidence on affidavit at Exh. 9 on 11/02/2019
alongwith documents which are at Exh.10 to 18. Thereafter, matter was
fixed for final arguments. Further, on perusing Notice of Motion No.
1120/2019 is taken out to set aside ex-parte evidence order dated
29/01/2019 and Notice of Motion No. 3628/2019 was taken out to set
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SUM SU No.1183/2015
aside order dated 21/12/2018. It is pertinent to note that no order is
passed on 21/12/2018 or 29/01/2019 however, it shows matter was
adjourned for ex-parte evidence. It was dismissed in default on
22/09/2022. Chamber Summons No.1748/2018 was taken out for
restoration of Notice of Motion No.1120/2019 which came to dismissed
on 22/09/2022. Notice of Motion No. 4451/2022 was taken out to set
aside order dated 22/09/2022 to restore Notice of Motion
No. 3628/2019 and Chamber Summons No.1748/2019. In view of
order passed on Notice of Motion No. 4451/2022 on 28/11/2022 only
Notice of Motion No.1120/2019 was restored and not Chamber
Summons No. 1748/2019. It is pertinent to note that rozanama does
not show that defendants have taken out notice of motion or chamber
summons to set aside ex-parte order dated 19/08/2017 passed against
them. Moreover, there is no ex-parte evidence order passed on
29/01/2019, as discussed above, it is stage fixed for recording ex-parte
evidence. Therefore, question does not arise to set aside such order.
Even, otherwise unless 'ex-parte order dated 19/08/2017 is set aside'
defendants have no right to proceed with matter. Hence, Notice of
Motion is not tenable and liable to be dismissed. Hence, I proceed to
pass the following order.
ORDER
Notice of Motion No. 1120/2019 is dismissed.
(Sangram. S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date- 02/05/2024
Dictated on : 02/05/2024
Corrected & signed on : 03/05/2024
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SUM SU No.1183/2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
04/05/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
02/05/2024
JUDGMENT/ORDER signed by P. O. on 03/05/2024
JUDGMENT/ORDER uploaded on 04/05/2024
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