Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1218 OF 2019
IN
SHORT CAUSE SUIT NO.7495 OF 1983
Ms. Rashna Ratan Surveyor & Anr. ...Plaintiffs.
V/s.
Westcoast Builders Private & Anr. ...Defendants.
Appearances:
Ld. Adv Ms. Duraiya S. Retiwala for plaintiff.
Ld. Adv. Ms. Priyanka Kothari for defendant no.1.
Ld. Adv. Ms. Nanavati for defendant no.2.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R.No.20)
DATED : 12th June, 2019
ORDER
Plaintiff has taken out this notice of motion for removing
the suit from the caption of dismissal order.
2. It is argued that on 04.02.2019 the matter was on board for
filing evidence affidavit. The affidavit of plaintiff was ready. However
as the presiding officer was on leave, plaintiff has not tendered said
evidence affidavit in the Court. The matter was adjourned to
26.02.2019. On that day the Ld. Counsel for the plaintiff reached the
Court late. However meanwhile the Court has passed order to keep suit
for dismissal. There was no delay on the part of plaintiff to lead
evidence. Substantial rights of plaintiff are involved in the suit. They
MHCC01-003138-2019
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NM 1218/2019 .. 2 .. Suit No.7495/1983
are ready to proceed with the suit. Hence, it may be taken out from
caption of dismissal order.
3. The defendant has resisted application on the ground that
despite sufficient opportunity plaintiff has not tendered evidence
affidavit. The delay was intentional one and therefore application may
not be allowed. If this Court is going to allow the application then cost
may be imposed.
4. I have gone through the roznama. On 22.12.2018 issues
were framed and on 28.01.2019 it was listed for filing evidence
affidavit. The roznama shows that suit was adjourned for further two
dates for filing affidavit. It goes to show that there was no inordinate
delay on the part of plaintiff to lead evidence. It is a span of just two
months. So it can not be concluded that plaintiff was prolonging the
suit. Moreover as far as possible matter must be decided on merit by
giving fare opportunity to parties to plead their case. The Court should
not be too technical to deprive the parties from substantial justice. At
the most certain cost can be imposed. Accordingly, the order.
O R D E R
1. Notice of Motion No.1218 of 2019 in Suit No.7495 of
1983 is hereby allowed.
2. Suit be taken out from the caption of dismissal order
on payment of cost of Rs.1,000/ by plaintiff to
defendant no.1 till next date.
3. Plaintiff is at liberty either to pay cost directly to
defendant no.1 or to deposit in the Court. On
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NM 1218/2019 .. 3 .. Suit No.7495/1983
payment of cost suit be taken out from the caption of
dismissal order and be listed to proper stage.
(Milind V. Kurtadikar)
Judge, (C.R.No.20)
Dt.: 12/06/2019 City Civil Court, Gr. MUMBAI
Dictated on : 12.06.2019
Transcribed on : 12.06.2019
Signed on : 13.06.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14.06.2019 11.00 a.m. Sanjay B. Kaskar
(StopGap Stenographer)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
12.06.2019.
Judgement/order signed by P.O on 13.06.2019.
Judgement/order uploaded on 14.06.2019.
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