Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010037252018
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER BOMBAY
NOTICE OF MOTION NO. 1162 OF 2018
IN
SUIT N0. 7419 OF 2005
Jaishree Ramdayal Pamnani & Ors. ...Plaintiff
Versus
Ahmed Oomerbhoy & Ors. ...Defendant
Appearance :
Ld. advocate S. W. Pradhan a/w Adv. Aditya Kavale i/b Zohair & Co. for
plaintiff.
Ld. advocate Jayesh Gawde for defendant Nos.1 and 7.
Coram : DR. S. D. TAWSHIKAR
C. R. NO : 61
Heard on : 29/03/2023.
Decided on : 29/03/2023.
ORDER
By way of present notice of motion (NM), plaintiff seeks to
recall the order of dismissal against defendant No.1 passed by this court
on 25/07/2017 in NM No.1009/2016. Thus, plaintiff seeks restoration
of suit against defendant No.1.
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2 ORDER IN NM No.1162/18
IN SU NO. 7419/05
2. Heard Ld. Advocate for plaintiff as well as Ld. Advocate for
defendant Nos.1 and 7.
3. Ld. Advocate for plaintiff points the order dated
25/07/2017 in NM No.1009/2016, which is placed on record along
with the present NM. He submits that the plaintiff had already served
defendant No.1 and defendant No.1 had caused appearance through an
advocate. The Ld. Predecessor of this Court, vide impugned order dated
25-07-2017, has observed that plaintiff failed to take proper steps
against defendant Nos.1, 3, 4 and 5 and therefore, suit came to be
dismissed against the said defendants. He further submits that the
observation in the said order are factually incorrect. He further points
out the
roznama dated 25/07/2017, which reveals that the Court on
same day had directed the plaintiff to serve notices to defendant Nos.1,
3, 4 and 5.
4. Ld. Advocate submits that there is confusion regarding
dismissal of the suit against defendant Nos.1, 3, 4 and 5. However, as
the order below NM No.1009/2016 is still in force, plaintiff has taken
out the present NM so as to remove the said ambiguity. He ultimately
prays formally to restore the suit against defendant No.1 by recalling
the impugned order to that extent.
5. Ld. Advocate Mr. Jayesh Gawde for defendant No.1 is
present. He takes exception to the prayer clause in present NM. He
submits that the plaintiff has not properly drafted the prayers. So far as
the merit of contention of plaintiff is concerned, Ld. Advocate fairly
concedes that defendant No.1 was already served.
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IN SU NO. 7419/05
6. In view of the aforesaid submission and admitted fact that
defendant No.1 was already served and it had caused appearance, the
observations in the order dated 25/07/2017 about dismissal of the suit
for not taking steps against defendant Nos.1, 3, 4 and 5,
per se seems
incorrect. The further order in
roznama of the same date, reveals the
directions for issuance of notices to said defendants. Therefore, I find
that the said order needs to be recalled to the extent of the dismissal of
suit against these defendants. Though the plaintiff claims restoration of
the suit against defendant No.1 only, however, it is clear that the said
observation are incorrect, with respect to defendant Nos.3, 4 and 5 as
well. Therefore, the suit needs to be restored against these defendants.
Hence, the order-
ORDER
A. Notice of motion No.1162/2018 is hereby allowed in terms of
prayer clause (a) to (c), which reads as under -
a) The delay, if any, caused in preferring the present
application may please be condoned;
b) That part of the Order dated 25th July, 2017 passed in
Notice of Motion No.1009 of 2016, thereby dismissing
the suit against “Defendant No. 1” may pleased be
recalled and set aside;
c) In the alternative, that part of the Order dated 25th
July, 2017 passed in Notice of Motion No.1009 of 2016,
thereby dismissing the suit against “Defendant No. 1”
may pleased be reviewed and the error apparent on
record be rectified;
B. Suit is restored against defendant Nos.1, 3, 4 and 5.
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IN SU NO. 7419/05
C. As defendant Nos.1, 3, 4 and 5 are not represented before this
Court, issue notice of appearance to them.
D. As advocate for defendant No.1 is present, no separate notice
needs to be issued against defendant No.1.
E. Notice of Motion No.1162/2018 is disposed of accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date- 29/03/2023. Court Room No.61
Dictated on : 29/03/2023
Transcribed on : 29/03/2023
Corrected on : 29/03/2023
Printed & Signed on : 31/03/2023
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IN SU NO. 7419/05
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
31/03/2023 at 5.30p.m. Ms. Sonali S. Sawant
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
29/03/2023
JUDGMENT/ORDER signed by P. O. on 31/03/2023
JUDGMENT/ORDER uploaded on 31/03/2023
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