Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No. 1153 of 2018 1 Suit No. 6276/2004
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.1153/2018
IN
SUIT NO.6276/2004.
(High Court Suit No. 318 of 2004)
M/s. Jayantilal Investment ... Plaintiffs.
V/s.
Madhuvihar Coop. Hsg. Society Ltd. .. Defendants
CORAM : HIS HONOUR JUDGE
SHRI. GOPAL G. BHANSALI.
(C.R. NO.31)
DATE : 09.04.2019.
APPEEARANCE.
Ms. Harsha Shah, Advocate for plaintiff.
Mr. Upadhyay, Advocate for Defendants.
ORAL ORDER
This is a notice of motion taken out by the plaintiff to set
aside the order of dismissal in Short Cause Suit No.6276 of 2004 dated
17.02.2018. Heard the learned advocate Harsha Shah for plaintiff.
Perused the reply filed by defendant Madhuvihar Cooperative Housing
Society.
2. The learned advocate Harsha Shah for plaintiff submits that
it is explained in detail that as the Chamber Summons was rejected by
this Court, the plaintiff has preferred the appeal, however, the plaintiff
could not get circulation due to leave of the Hon'ble Judge. There was
no fault on the part of plaintiff, however, the suit was proceeded for
dismissal. The Court has granted the last chance and dismissed the suit
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Notice of Motion No. 1153 of 2018 2 Suit No. 6276/2004
on 17.02.2018. The learned advocate Upadhyay for defendant submits
that there was no order of stay. The present suit is similar with suit
no.4385 of 1997 filed by the defendant Madhuvihar Cooperative
Housing Society. It is requested to peruse the order of the Hon'ble
High Court dated 07.10.2010 wherein appeal stands allowed and a
decree came to the finality. It is requested to dismiss the motion with
costs.
3. On perusal of roznama dated 17.02.2018, it is crystal clear
that the suit was posted for dismissal after providing ample opportunity.
Admittedly, no stay was granted by the Hon'ble High Court.
4. It is to note that order in Chamber Summons No.1401 of
2013 dated 08.07.2016 and all previous order are in respect of suit
no.4385 of 1997. According to plaintiff, the previous suit is outrightly
different from the present suit. Therefore, the question is whether
restoration of present suit may cause any type of prejudice to
defendants. It would be judicious to decide the matter on merit.
5. Admittedly, the plaintiff failed to obtain adjournment
before this Court on the ground of appeal preferred by plaintiff.
6. Hence, the suit is restored subject to costs of Rs.10,000/ be
paid to defendant no.1 Madhuvihar Cooperative Housing Society.
Hence, order.
ORDER
1. The Notice of Motion No.1153 of 2018 is allowed.
2. The order of dismissal dated 17.02.2018 is set aside
subject to costs of Rs.10,000/(Rs. Ten Thousand
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Notice of Motion No. 1153 of 2018 3 Suit No. 6276/2004
only) be paid to the defendant or to deposit in this Court within
two months from the date of order.
3. After depositing aforesaid costs, the suit be restored to its
previous stage i.e. hearing.
4. The Notice of Motion No.1153 of 2018 is disposed of accordingly.
(Gopal G.Bhansali )
Judge,
Date:09.04.2019. City Civil Court, Gr.Mumbai.
Dictated on : 09.04.2019.
Transcribed on : 10.04.2019.
Signed on :
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
20.04.2019 at04.50pm. PUSHPA RAMESH WAGH
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI G.G.BHANSALI
(Court Room No.31)
Date of pronouncement of Order 09.04.2019
Order signed by P.O. on 11.04.2019
Order uploaded on 20.04.2019
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