Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No 1077/18
in Summary Suit No.1276/2013
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1077 of 2018
IN
SUMMONS FOR JUDGMENT NO.186 OF 2015
IN
SUMMARY SUIT NO.1276 OF 2013
Vithal Varak
R/a: Block No.211, S.B.I.Staff colony,
Laxman Raheja Marg, Malad (W),
Mumbai400 097. … Plaintiff
Vs
Smita Y. Pednekar
R/a: c/o: Bhagyalaxmi Kanade,
Room No.11, 1st floor, Old Ganjawala
Chawl, Belasis Bridge Road, Opposite
Hotel Hindamata, Tardeo, Mumbai Central,
Mumbai 400 034. ....Defendants
Appearance:
Learned Advocate Mr.Nirmala Gopal for the Plaintiff.
CORAM : HER HONOUR ADHOC CIVIL JUDGE
SMT. C.P.JAIN (C.R.NO.40)
DATED : 23rd November, 2019.
ORDER
1. This notice of motion is taken out by plaintiff praying to set
aside the order dated 5/4/2017 of dismissing the summons for
judgment and to restore the summons for judgment to its file.
2. In the affidavit filed along with the notice of motion, plaintiff has
averred that the matter was posted for filing the original documents and
arguments of summons for judgment on 5/4/2017. As he was not well
in the entire month he could not meet his advocate and give
instructions to him. On 5/4/2017 his advocate was busy in Hon'ble
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2 Notice of Motion No 1077/18
in Summary Suit No.1276/2013
High Court and he was not well. Therefore, though his advocate
informed him to attend the matter he could not attend the same. The
Hon'ble Court had dismissed his summons for judgment on same date
i.e. on 5/4/2017. On account of his illness and the busy schedule of his
advocate no one could remain present on behalf of plaintiff in court.
There was no other malafide intention in not attending the matter. He
has good chances to succeed in the summons for judgment. Therefore
he prayed for allowing his notice of motion.
3. Defendant has resisted aforesaid notice of motion by filing his
reply. He denied all averments in the notice of motion moved by
plaintiff. According to him, sufficient opportunity was given by the
court to plaintiff for hearing on summons for judgment. As plaintiff
and his advocate failed to remain present on 5/4/2017, the court has
rightly dismissed the summons for judgment. The reasons made out in
the application are false. The only remedy available to plaintiff is to file
an appeal against the order dated 5/4/2017. There is no document
tendered on accord to substantiate the averments in the notice of
motion. For aforesaid reasons he has prayed for dismissal of notice of
motion.
4. Heard both the sides. Perused the proceeding.
5. On perusal of the roznama, it is appearing that since 8/2/2016,
the matter was posted for summons for judgment hearing. On further
perusal of the roznama it is nowhere appearing that plaintiff was
avoiding to remain present in the court. It is appearing that plaintiff
was present on all the dates fixed in the summons for judgment. On
24/11/2016, plaintiff was directed to produce original documents on
record. Thereafter on 10/2/2017 and 15/3/2017 the summons for
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3 Notice of Motion No 1077/18
in Summary Suit No.1276/2013
judgment remained on same stage. On 5/4/2017 the summons for
judgment was for hearing. As plaintiff and his advocate were found
absent, it was dismissed for want of hearing.
6. If the aforesaid roznama is given minute consideration, it is not
reflecting that plaintiff has any time avoided to remain present in court.
In light of aforesaid conduct, the averments in the notice of motion that
on account of his illness, he could not attend the court on 5/4/2017
cannot be disbelieved. It is further pertinent to note that the averments
in the notice of motion are affirmed on oath. There is no rebuttal to
these averments on part of defendant except denial. Nothing is
tendered on record on behalf of defendant to show malafides on part of
plaintiff. If there is nothing on record to doubt in averments in notice
of motion, the averments made in the notice of motion are worth
believable.
7. The summons for judgment was taken out by plaintiff. If
plaintiff is not given opportunity, plaintiff will be suffering irreparable
loss. If the present notice of motion is allowed, defendant will not be
put to any irreparable loss. He will be having all opportunity to contest
the summons for judgment. Giving opportunity to plaintiff will be in
the interest of both the parties to avoid the multiplicity of proceedings.
Therefore, in the interest of justice, the arguments of learned advocate
for plaintiff deserves to be accepted as against the arguments of learned
advocate for defendant. For aforesaid discussion the notice of motion
deserves to be allowed. The inconvenience caused to defendant can be
compensated by saddling costs upon plaintiff. In result, I proceed to
pass following order;
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in Summary Suit No.1276/2013
ORDER
1. Notice of Motion No.1077 of 2018 is allowed subject to costs of
Rs.2000/ to be paid by plaintiff to defendant on or before next date.
2. On deposition of costs, the Summons for judgment shall stand
restored to its file and scheduled on the date of Suit No.1276 of 2013
3. Notice of Motion No.1077 of 2018 is accordingly disposed of.
(C.P.Jain)
Adhoc Civil Judge
City Civil Court,
Gr. Bombay
Date : 23/11/2019
Dictated on : 23.11.2019
Transcribed on : 27.11.2019
Signed on :
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in Summary Suit No.1276/2013
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME : 9.12.2019 AT 04.47 am
NAME OF STENOGRAPHER : MRS. Prajakta K. More
NAME OF THE JUDGE HHJ SMT.C.P.JAIN
(C.R.No.40)
Date of Pronouncement of Order 23/11/2019
Order signed by the P.O. On 23/11/2019
Order uploaded on 9/12/2019
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in Summary Suit No.1276/2013
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