Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1324 OF 2019
IN
MISC. APPLICATION NO.26 OF 2012
IN
L.C. SUIT NO.2310 OF 2009
1. Vrinda Parmanand Naik & Ors. ] … Applicants
Vs.
M/s Suvarna Rekha Enterprises and Ors. ] ... Respondents
Appearances :
Adv. Nilima Sarvagaun for applicant present.
None present for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 17th January, 2020
ORAL ORDER
1. Plaintiff filed this Notice of Motion through constituent
attorney, Mrs. Malvika Prakash Panvelkar to set aside order dated
07.02.2019 keeping the Misc. Application No.26 of 2012 for dismissal
order.
2. Perused Notice of Motion, affidavit in support of Notice
Motion and reply of defendant Nos.1, 2, 4 and 5. Heard both sides.
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3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether order dated 07.02.2019
keeping the Misc. Application
No.26/2012 for dismissal order can be
set aside ?
In the affirmative.
2. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of applicant that he filed the said
Miscellaneous Application No.26 of 2012 to set aside and cancel the
decree and order dated 22.12.2000 which was drawn as per the consent
term filed between the Applicant and Respondents.
5. Issues are framed on 17.03.2018. Thereafter, matter was
posted on 03.07.2018. Due to heavy rains the matter was adjourned to
03.07.2018 to 10.08.2018. On 07.12.2018 constituent attorney of the
applicant appeared personally and sought time to file evidence. Matter
adjourned from 7.12.2018 to 07.02.2019. Applicant could not inform
her advocate that she was not well on 07.02.2019 therefore, on
07.02.2019 it is directed to keep the matter for dismissal order. Hence,
the said order be set aside.
6. In brief, it is contention of defendant Nos.1, 2, 4 and 5 that
Respondent No.1 is the partnership firm. Respondent Nos.4 and 5 are
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partners of Respondent No.1. All the adverse contentions are denied.
The applicants lost interest in the matter. Therefore, the so called
power of attorney holder is prosecuting the matter for the reasons best
known to her. Hence Notice of Motion be dismissed.
7. Perused Roznama dated 07.02.2019. It is mentioned
therein that issues are framed on 17.03.2018. Six chances were given
to the applicant to lead evidence. Applicant did not lead evidence.
Therefore, it is directed to keep the matter for dismissal order on
16.2.2019.
8. Perused Roznama dated 16.02.2019. It appears that the
Lawyer of the plaintiff filed pursis Exh.14. Counsel of the plaintiff filed
application Exh.15 for adjournment. Application Exh.15 is rejected and
it is directed to keep the matter for dismissal order on 16.03.2019.
Advocate Ms. Nilima Sarvagod was present for the applicant on
16.02.2019 who undertook to file Vakalatnama.
9. It is contention of the applicant that on 07.02.2019
applicant could not inform her Advocate that she was not feeling well.
Therefore, she did not remain present before the Court on 07.02.2019.
10. Perused Order 9 Rule 3 of the CPC. As per the said Rule
where neither party appears when the suit is called on for hearing, the
Court may make an order that the suit be dismissed.
11. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
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plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his nonappearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
12. Considering the ground for setting aside the order
mentioned in the affidavit of Notice of Motion and considering the
nature of Miscellaneous Application No.26 of 2012, I am of the opinion
that one opportunity can be given to the applicant to lead evidence.
Hence, I record my findings to point No.1 in the affirmative and point
No.2 the Notice of Motion is allowed as per final order. Hence
following order:
ORDER
Notice of Motion No.1324/19 is allowed as under :
1. Order dt.07/02/2019 to keep the Misc Application No.26/2012
for dismissal order is hereby set aside.
2. Applicant is permitted to lead evidence in support of Misc
Application No. 26/2012 on next date.
3. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 17/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 17/01/2020
Transcribed on : 20/01/2020
Signed on : 21/01/2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.01.2020 at 04.45 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 17.01.2020
Judgment/order signed by P.O. on 21.01.2020
Judgment/order uploaded on 21.01.2020
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