Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1470 of 2019 ..1.. date 10.08.2022
IN THE BOMBAY CITY CIVIL COURT FOR GREATER
MUMBAI
NOTICE OF MOTION NO.1470 OF 2019
(CNR NO.MHCC01-003890-2019)
IN
S. C. SUIT NO. 2619 OF 2014
Mrs. Pranoti Pradeep Patange, (Died per LR)
1 Mr. Pradeep Baburao Patange,
Male, adult, aged about 66 years, Occ : Hindu
Priest, Indian Inhabitant, residing at present at
307/T-8, Pratiksha Nagar, Camp No. 1, Sion-
Koliwada, Mumbai – 400 022
2 Mrs. Kshipra Vaibhav Jahagirdar,
Daughter of Pradeep Baburao Patange, Female,
adult,aged about 25 years, Indian Inhabitant,
residing at Plot No. 583, Devdarshan
Apartment, First Floor, Opp. Vijay Marble,
Thane- Belapur Road, Sector – I, Shirvane, Navi
Mumbai – 400 706.
….Plaintifs
Versus
Mr. Vinayak Mahadeo Kale, (Died per LR)
1
a
Vinita Vinayak Kale wd/o Vinayak Kale,
Female, adult, Aged about 51 years, Occ. :
Service,
1
b
Mrunmai Vinayak Kale,
Married, Daughter of Vinayak Kale, Female,
Adult, aged about 28 years, Occ. : Service,
both residing at Flat No. 1004, 10th Floor, 'H'
Wing, Indravadan Co-operative Housing
Society Ltd., Padmabai Thakkar Road, Mahim,
Mumbai – 400 016.
2 The Honourable Secretary,
Indravadan Co-operative Housing Society Ltd.,
bearing Registration No. BOM/HSG-3262/1971,
Padmabai Takkar Road, Mahim, Mumbai – 400
160
…
Defendants
-- 1 of 6 --
NM 1470 of 2019 ..2.. date 10.08.2022
Appearances :-
Ld. Adv. Upendra Lokegaonkar h/f Y. S. Bhate for plaintif.
Ld. Adv. Sudam Patil for Deft. no.1(a) and (b).
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 10/08/2022.
ORDER
1. This Notice of Motion is taken out by plaintif for
restoration of suit with condition of delay of 20 days.
2. It is the contention of the plaintif that the original
plaintif was sufering from acute uncontrollable diabetes. He
requested his counsel to look after the matter and informed
the status. However, due to his decease, he could not attend
the Court, in the result suit came to be dismissed in default,
on 30.01.2019. It is his contention that absence of deceased
defendant was not intentional and prayed for restoration of
the suit to its original stage.
3. The defendant appeared through counsel fled reply
denying the contentions of the plaintif. It is submitted that
reason assigned for the the restoration of the suit is not
proper and the afdavit fled by the defendant of counsel is
having mentioned no true facts and prayed for rejection of the
Notice of Motion.
4. The plaintif have fled their rejoinder and documents
related to the decease.
-- 2 of 6 --
NM 1470 of 2019 ..3.. date 10.08.2022
5. Heard both the sides. It reveals from the record that
plaintif was absent since October 2017 continuously for 5
dates, thus, the matter came to be dismissed. It is fairly
submitted by the counsel of the plaintif that it was his
negligence and mistake that he could not follow the date for
the case, therefore, matter can be dismissed and when he
appeared for another case before this Court, he came to know
about the dismissal of the suit. He further submitted that the
plaintif should not be sufered for the mistake committed by
the counsel, and to strengthen the condition is relying on the
judgment passed by Hon'ble Bombay High Court in case of
Ashok Ravji Vadoriya and etc. V/s. Municipal
Corporation of Greater Bombay, reported in AIR 2004
BOM 8. There was not be two opinion regarding principle,
that party should not sufer for the act and omission
committed by the counsel. The counsel of defendant also did
not dispute to the same.
6. However, it is the submission of counsel of the defendant
that the reason assigned for dismissal is relating to the health
issue of plaintif which is not supported by the appropriate
documents. It the contention of the plaintif that the plaintif
has fled medical papers with the rejoinder. Record shows that
during the pendency, both original plaintif and defendants
have died on their legal heirs brought on record.
7. On perusal of plaint, it reveals that signature of the
-- 3 of 6 --
NM 1470 of 2019 ..4.. date 10.08.2022
plaintif on plaint is obtained in presence of Ofcer of the
Registry who appeared at the heirs of plaintif as per order of
Registrar. Thus, it afects that deceased plaintif was sufering
from acute ill health that he could not attend the Court even
after fling the suit. Thus, the absence of plaintif can not be
considered as deliberate act.
8. The record also shows that the original plaintif and
defendants are siblings. Dispute is related to the landed
property. The plaintif is claiming title in the suit property.
Considering the fact that counsel of plaintif have admitted his
mistake and fled the afdavit in support of his contention, I
am of the view that the contention of counsel of plaintif is
deserves to be accepted. The plaintif should not sufer for
the omission committed by the counsel of plaintif.
Consequently, the Notice of Motion needs to be allowed.
Hence, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 1470 of 2019 in
disposed of Suit No. 2619/2014, is hereby
allowed.
2. Delay of 20 days be condoned.
3. Matter be restored on its original stage.
4. Notice of Motion No. 1470 of 2019 is
disposed of accordingly.
(Order dictated & pronounced in open Court)
-- 4 of 6 --
NM 1470 of 2019 ..5.. date 10.08.2022
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, C.R. No.03
Dated : 10/08/2022 Greater Bombay
Dictated on : 10/08/2022
Typed on : 11/08/2022
Signed on :
-- 5 of 6 --
NM 1470 of 2019 ..6.. date 10.08.2022
“Certifed to be true and correct copy of the original signed order”.
12/08/2022 (Ms. Varsha V. Sawant)
at about 5.00 p.m. Stenographer (Grade-I.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh
Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr.
Mumbai
Date of pronouncement of
Order
: 10/08/2022
Order signed by Hon'ble Judge
on
: 12/08/2022
Order uploaded on : 12/08/2022
at about 05.00 p.m.
-- 6 of 6 --