Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1239 OF 2019
IN
SHORT CAUSE SUIT NO.1047 OF 2012
Muni Darshan Residency C.H.S. Ltd. … Plaintiff
V/s.
M/s. Sagar Enterprises & Anr. … Defendants
Appearances:
Plaintiff inperson.
None present for defendant no.1.
Ld. Adv. R.R. Mishra for defendant no.2.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R.No.20)
DATED : 21st SEPTEMBER, 2019
ORDER
Plaintiff has taken out this notice of motion for taking out
the suit from dismissal caption.
2. It is argued on behalf of plaintiff that on 15.06.2018 issues
were framed and matter was listed on 05.07.2018 for evidence on
behalf of plaintiff. However, on 05.07.2018 as well as on subsequent
dates no one appeared from plaintiff and therefore, suit is kept for
dismissal order. The absence was not intentional one. The plaintiff and
his advocate could not attend the Court for some unavoidable
MHCC01-003202-2019
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NM 1239/2019 .. 2 .. Suit No.1047/2012
circumstances. Plaintiff is ever ready to proceed with the suit.
Therefore, suit may be taken out from dismissal caption.
3. The Ld. Counsel for defendant has resisted the application
on the ground that on two dates none was appeared for plaintiff. So it
was the intention of plaintiff not to proceed with the suit and to delay
the hearing. Therefore the Court has rightly kept the suit for dismissal
order.
4. It is a matter of record that issues were framed on
15.06.2018 and matter listed for evidence on 05.07.2018. As per
roznama on 05.07.2018 as well as on 10.09.2018 no one appeared for
plaintiff and therefore, suit is kept for dismissal order. It goes to show
that on two dates none was appeared for plaintiff. Neither it can be
termed as intentional absence, nor it can be said that in order to delay
the matter plaintiff remained absent. In such circumstances fair chance
must be given to plaintiff. Apart from above discussion it is settled legal
position that matter must be decided on merit. As a rule of natural
justice no one should be condemned unheard. As plaintiff is ready to
proceed with the suit, there is no reason for the Court to deny the
request made by plaintiff. Therefore, on both aspect it will be proper to
give fair opportunity to the plaintiff to proceed with the suit.
Accordingly the order.
O R D E R
1. NM No.1239/19 in SU No.1047/12 is hereby allowed on
cost of Rs.2,000/ to be paid to the defendants or to deposit
in the Court on or before next date.
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NM 1239/2019 .. 3 .. Suit No.1047/2012
2. On compliance of cost order suit be taken out from
dismissal caption.
(Milind V. Kurtadikar)
Judge, (C.R.No.20)
Dt.: 21/09/2019 City Civil Court, Gr. MUMBAI
Dictated on : 21.09.2019
Transcribed on : 23.09.2019
Signed on : 25.09.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
26.09.2019 05.30 p.m. Sanjay B. Kaskar
(Stenographer H.G.)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
21.09.2019.
Judgement/order signed by P.O on 25.09.2019.
Judgement/order uploaded on 26.09.2019.
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