Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1310-19 in S.C.SUIT no.7581-81
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 1310 OF 2019
(CNR no. MHCC010033742019)
IN
S.C. SUIT NO. 7581 OF 1981
(CNR no. MHCC010001461981)
(HIGH COURT SUIT NO. 1065 OF 1981)
Jagdish R. Singh ]..Plaintiff
Versus
1. Keki Rattansha Kalapesi & 2 ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 24th April, 2019.
Mr. N. V. Amin i/b M/s. B. Amin & Co., advocate for plaintiff.
Mr. Arvind Giriraj i/b Bilawala & Co., advocate for defendant no. 3.
ORDER
1. The plaintiff has taken out this motion seeking to recall
order dated 11.02.2019 by which the chamber summons no. 1005 of
2017 was dismissed for default of the plaintiff in prosecuting the same
and further for restoration of the said chamber summons. The plaintiff
has also prayed for condonation of delay in taking out the notice of
motion.
2. The learned advocate for the plaintiff submitted that the
matter was fixed on 01.02.2019 and thereafter, adjourned on
06.02.2019 and thereafter, on 11.02.2019 and therefore, he could not
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2 NM no.1310-19 in S.C.SUIT no.7581-81
take such short dates inadvertently and for that he submitted to record
the said facts of his inadvertence about the dates, though, he did not file
such affidavit in support. Apart that, he submitted that the plaintiff is a
senior citizen, who is suffering from diabetes and fracture of leg since
June, 2018 and he is not able to walk and attend the matter in the
Court, personally.
3. On the other hand, the learned advocate for the defendant
no. 3 strongly opposed the motion on the ground that the suit is
instituted in the year 1981 and that the plaintiff's conduct is malafide
and deliberated to delay the matter etc. According to him, if the motion
is allowed great prejudice would be caused to defendant no. 3.
4. The notice of motion no. 1310 of 2019 has been taken out
to bring on record the legal representatives of deceased defendant
no. 2. On perusal of record, it appears that on 01.11.2018 the matter
was adjourned to 28.11.2018 for hearing of chamber summons.
However, thereafter, the learned Predecessor of this Court was busy in
other matters and therefore, discharged the board on 28.11.2018,
21.12.2018 and 14.01.2019. Thereafter, the matter was fixed for
argument on chamber summons on 01.02.2019 and it was adjourned to
06.02.2019 and further on 11.02.2019 due to absence of the plaintiff
and his advocate. On 11.02.2019, the chamber summons was dismissed
for default. Thereafter, the motion was taken out on 22.03.2019.
5. The learned advocate for the plaintiff has already
submitted about his inadvertence of the dates, which is probable when
the matter has been adjourned by giving short dates. Therefore, the
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3 NM no.1310-19 in S.C.SUIT no.7581-81
plaintiff can not be held responsible for such inadvertence or failure in
taking dates by the advocate for the plaintiff, and that too, when the
plaintiff is undisputedly a senior citizens and claiming to be unable to
attend the Court due to fractured leg. The suit is about 40 years old and
the same is required to be disposed off as early as possible by avoiding
such technicalities and hearing the matter on merits. The chamber
summons no. 1005/2017 is required to be heard on merit and therefore
for the reasons recorded above the notice of of motion is required to be
allowed. The prejudice which may be caused to the defendant no. 3 can
be compensated in terms of costs. Thus, the following order is passed :
ORDER
1. The Notice of Motion no. 1310 of 2019 is made absolute in terms
of prayer clause (a) and (b) subject to payment of costs of
Rs. 2,500/ to be paid to defendant no. 3 or deposited for that
purpose in the Court within the period of two weeks from today.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 24.04.2019 City Civil Court, Mumbai.
Dictated on : 24.04.2019
Transcribed on : 24.04.2019
Checked by HHJ on : 24.04.2019
Signed by HHJ on : 24.04.2019
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4 NM no.1310-19 in S.C.SUIT no.7581-81
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 24.04.2019 at 5.15 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
24/04/2019
JUDGMENT/ORDER signed by
P.O. on
24/04/2019
JUDGMENT/ORDER uploaded
on
24/04/2019
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