Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1478 OF 2019
IN
NOTICE OF MOTION NO.134 OF 2015
IN
S.C.SUIT NO.554 OF 2014
1. Mr.Abdul Khaliq Azimulla
2. Mr.Abdul Muttalib Azimulla … Plaintiffs
Versus
1.Mr.Shafiqur Rehman Khan (Deceased)
Through Legal Heirs
1(A). Mrs.Shakira,
1(B). Tufail Ahmed Khan,
1(C). Suhail Ahmed Khan,
1(D). Qamarjahan
2. Zenith Timber Mart,
3.Shafiqur Rehman Khan & Bros.Timber Mart,
1(E) Amina W/o Mr.Khrsheed Alam, ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 20th JUNE, 2019
Ld.Advocate Farooq Chaudhari for plaintiff.
Ld.Advocate Pallavi Gandhi for defendant nos.1(A) to 1(C).
O R D E R
1. This notice of motion taken out by plaintiff for setting aside
the dismissal order dated 10th October, 2018 by which notice of motion
bearing No.134 of 2015 filed for temporary injunction was dismissed by
the order of my learned predecessor. In para 13 of the affidavit filed in
support of notice of motion, it is contended that this notice of motion
-- 1 of 4 --
:2: NM. 1478/19 IN SUIT554/14
should have been taken out by plaintiffs before 9th November, 2018 but
87 days delay is caused which beyond the control of plaintiff as
plaintiffs
2. In para13 of the affidavit filed in support of notice of
motion, it is contended that this notices of motion should have been
taken out by plaintiffs before 9th November 2018 but 87 days delay is
caused which beyond the control of plaintiff as plaintiffs were convicted
in Session Case No.110/2011 for the offences punishable U/ss.147,
148, 149, 323, 504, 506 & 307 of the Indian Penal Code. In para11 of
the affidavit in reply it is contended that on 10th October, 2018 no one
present on behalf of plaintiff therefore not only this notice of motion
but another notice of motion N.878 of 2014 also came to be dismissed.
It is contended that on 10th October, 2018 matter was fixed for written
statement of newly added defendant no.1(a) to 1(e). According to
plaintiff the notice of motion taken out by him is dismissed due to some
misunderstanding or bonafide mistake on the part of plaintiff.
3. Defendants have resisted the notice of motion by filing
their affidavit of reply.Defendants have denied the contentions raised in
reply filed to resist the notice of motion. I have heard learned advocate
for plaintiff and defendants as notice of Motion no.134 of 2015 was
filed for claiming temporary injunction and as plaintiff is interested in
arguing the said relief, I find that the delay caused for setting aside
dismissal order of said notice of motion can be condoned for giving fair
opportunity to plaintiff to putforth his case for temporary injunction.
Further it can be said that plaintiffs were convicted and as such they
have explained the proper reason for condoning the delay cause in
taking out this notice of motion. Even though defendants' advocate
-- 2 of 4 --
:3: NM. 1478/19 IN SUIT554/14
strongly resisted the notice of motion I find that except denial of the
contentions of plaintiffs, defendants have not raised any specific case.
Therefore, contentions raised by plaintiff are necessary to be believed.
Hence, I proceed to pass the following order.
O R D E R
Notice of motion No.1478/19 is made absolute in terms of prayer
clause (a) and (b) subject to cost of Rs. 1000/ to be paid by
plaintiff to defendant no.1a to 1e.
Sd/
(K.P.NANDEDKAR)
20/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 20/06/2019
Transcribed on : 25/06/2019
Signed by HHJ on : 26/06/2019
-- 3 of 4 --
:4: NM. 1478/19 IN SUIT554/14
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
20/06/2019 11.35AM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgement/Order. 20/06/2019
Judgement/order signed by P.O on 26/06/2019
Judgement/order uploaded on 26/06/2019
-- 4 of 4 --