Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.1058 of 2018
CNR:MHCC010034372018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.1058 OF 2018
IN
L.C.SUIT NO.8 OF 2015
Mohammed Ismail Gulam Shaikh .. Plaintiff
V/s.
1 Municipal Corporation of
Greater Mumbai & Anr. .. Defendants
And
Mathuradas Estate Services
Co-operative Society Ltd. .. Applicant
Appearance:-
None for plaintiff.
Adv. Pradip Patil for defendants/MCGM.
Adv. Bagla for intervenor/applicant.
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 25/10/2023.
ORDER
This Notice of Motion is taken out by the applicant for
restoration of the Chamber Summons No.1738 of 2015 by setting aside
the order dt.16/08/2017.
-- 1 of 4 --
2 N.M.1058 of 2018
2 After considering the submissions of both sides, it reveals
that the present applicant had taken draft Chamber Summons
No.16/09/2015 and sought leave to register the same. Accordingly, on
18/11/2015 registered Chamber Summons No.1738 of 2015 was
tendered on record. On 21/06/2017, the plaintiff had filed reply to this
Chamber Summons. However, in view of absence of applicant and his
advocate, Chamber Summons came to be dismissed in default by an
order dt.16/08/2017.
3 The learned advocate for the defendant/MCGM has
strongly resisted the Chamber Summons on the ground that sufficient
opportunities were granted to the applicant to proceed with the
Chamber Summons but the applicant failed to do so, therefore, the
Court has rightly dismissed the Chamber Summons.
4 In the light of aforesaid facts and circumstances, I have
carefully gone through the roznama of the case. It reveals that after
filing reply by the plaintiff to this Chamber Summons, matter was kept
for hearing on 10/07/2017. However, on 10/07/2017, Court was
vacant and the matter was kept on 16/08/2017. However, on that day,
in view of absence of applicant, Chamber Summons came to be
dismissed. No doubt, there is delay of around 168 days in taking out
this Notice of Motion for restoration of the Chamber Summons.
However, it reveals that only on the basis of single default of the
applicant, Chamber Summons came to be dismissed in default. The
applicant is claiming himself to be the necessary party to the suit. It is
submitted that the applicant is having substantial interest in the subject
matter of the suit and without intervention of the applicant, suit cannot
-- 2 of 4 --
3 N.M.1058 of 2018
be effectively adjudicated. Therefore, considering these circumstances,
in my view, opportunity needs to be granted to the applicant to decide
his Chamber Summons on merits. So far as delay in taking out this
Notice of Motion is concerned, the plaintiff can be compensated by
awarding reasonable cost. In the result, following order is passed.
ORDER
1 Notice of Motion No.1058 of 2018 is allowed subject to
cost of Rs.2,000/-.
2 Order dt.16/08/2017 of dismissal of Chamber Summons is
hereby set aside and Chamber Summons No.1738 of 2015 be restored
to its original stage subject to deposit of cost amount or payment of cost
either to the plaintiff or his advocate within 15 days from the date of
this order.
3 Notice of Motion stands disposed off accordingly.
Date:25/10/2023. (R. M. Mishra )
Judge, City Civil Court,
Gr.Mumbai.
Dictated on :25/10/2023.
Typed on :25/10/2023.
Signed on :25/10/2023.
-- 3 of 4 --
4 N.M.1058 of 2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25/10/2023. 03.00 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
25/10/2023.
JUDGMENT/ORDER signed by P.O.on 25/10/2023.
JUDGMENT/ORDER uploaded on 25/10/2023.
-- 4 of 4 --