Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.1312 OF 2019
CNR NO.MHCCO10033922019
IN
S.C. SUIT NO.7245 OF 2005
Mr.Devendra Ganesh Bhartu ..Plaintiff
V/s
1.Sathe Building CHS Ltd and ors ..Defendants
AND
1.Dr.Vivek G.Bhartu and others ..Applicants
Adv. Mr.Shahzad M.Pandey on behalf of the applicants/proposed
plaintiffs with adv. Mona D.Vyas
Advocate Pradhan for defendants
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 28/11/2019
ORAL ORDER
1. This notice of motion is tendered by the applicants.
The proposed legal heirs of the original plaintiff
interalia for setting aside the order of the abatement
and further for restoration of the suit.
2. Heard.
3. Ld. Counsel for the applicants submitted that the
original plaintiff passed away on 18/09/2018. The
2
-- 1 of 4 --
2
applicants are his legal heirs. On perusal of the
record, it reveals that it is understood that Ld.
Counsel for defendant nos.5a to 5b and 8a and 8b
made statement that the plaintiff expired. The
advocate appearing for the plaintiff informed that
plaintiff has no legal heirs. The statement is totally
false. Since the death of original plaintiff, the
applicants were in shock and therefore the steps were
not taken to bring his legal heirs on record. In
January2019, the instruction was given to the
advocate to take out chamber summons. The suit
was abated and disposed off and therefore applicants
prayed for setting aside the said order.
4. The said notice of motion is opposed by defendant
nos.5a and 5b and defendant nos.8a and 8b on the
count that applicants are making incorrect statement
to obtain the order. No such statement was made by
the advocate of this defendant that plaintiff is not
having any legal heirs.
5. On perusal of the record, it reveals that other
defendants did not turn up. The original suit was
filed before the Hon'ble High Court. The matter was
for the cross examination of PW1. On 22/11/2011,
the Counsel for the defendant informed that plaintiff
expired, but nowhere reflects that any statement was
made by the Ld. Counsel for the plaintiff. The matter
3
-- 2 of 4 --
3
was hotly contested by the original plaintiff. The suit
was disposed of just after 90 days after the death of
original plaintiff. The legals heirs were in shock after
his death and therefore they could not approach the
court to bring the legal heirs on record. The
applicants have made sufficient cause for delay. The
dispute between the parties should be decided on
merits. No prejudice would be caused to defendants
if the matter is heard on merits. There should not be
hyper technical and pedantic approach in deciding
this type of notice of motion. Hence, notice of motion
needs consideration. Accordingly, it is expedient to
pass following order:
ORDER
1. NM 1312/19 is made absolute in terms of
prayer clause (a) and (b) subject to cost of Rs.
3000/ to be paid to the defendant no.5a, 5b, 8a,
8b within a period of 2 weeks from today.
2. On payment of cost suit be restored to its
original file.
3. Payment of cost is subject precedent.
NM is disposed of.
28/11/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 28/11/2019
Transcribed on : 02/12/2019
Signed on : 13/12/2019
4
-- 3 of 4 --
4
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
13/12/19 at 12.40 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
28/11/2019
Judgment and order signed by P.O. 13/12/2019
Judgment/order uploaded on 13/12/2019
-- 4 of 4 --