Final Order 1

Order Details: Other
Pdf Text: Misc. Appl. No. 42/2019 ..1.. InS.C.Suit No.4953/2011
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
MISC. APPLICATION NO. 42 OF 2019
IN
S.C. SUIT NO. 4953 OF 2011
CNR NO : MHCC010043612019
Parvez (Ismail) Abdul Malik Ansari ...Applicant /
Defendant No. 9
IN THE MATTER OF
Abdul Haque Razak Ansari ...Plaintiff.
Versus
Hajra Abdul Razak Ansari and Ors. ...Defendants.
Appearance :
Mr. Ram Upadhay, Advocate for Defendant No. 9/Applicant.
Mr. Dipak Pandey, Advocate for Defendants 1a, 1b and 1c.
Mr. Pankaj Dubey, Advocate for Defendant No. 8.
Mr. Ditendra Mishra, Advocate for plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 22ND MARCH, 2021.
ORAL ORDER
Defendant No. 9 has applied to condone the delay of
94 days caused in moving Review Petition against an order dated
14.11.2018 passed by my Predecessor in the Notice of Motion No.
2817/2016.
2. In brief, the applicant's case is that, after passing an order
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dated 14.11.2018, the applicant was eager to go through the
same, but it was not available on the Website. After waiting for
few days ultimately on 13.12.2018 he applied for certified copy
of the order through is advocate's clerk Mr. Gopal Singh. Said
Mr. Gopal Singh was ill from 25.12.2018 to 31.01.2019 and
joined office only on 01.02.2019. The advocate for the applicant
had been to his native place for the marriage of his niece
scheduled on 16.02.2019 and returned only on 05.03.2019. Later
it revealed that, Mr. Gopal Singh had wrongly mentioned the
notice of motion number in the certified copy application, as he
was not mentally stable during that time due to rough married
life. Therefore, he again applied for certified copy after
07.03.2019. These circumstances have caused delay of 94 days
which needs to be condoned considering the above grounds.
3. The plaintiff has not filed reply.
4. Perused. Heard Advocate for defendant No. 9 i.e. present
applicant as well as the advocate for the plaintiff.
5. Advocate for the applicant submitted that, the grounds
mentioned in the application are sufficient enough to condone
the delay. According to him the order sought to be reviewed
contain some error apparent on the face of it and therefore on
merits also applicant has good case. He submitted that, the
grounds be construed liberally and the application be allowed.
6. On the other hand the advocate for the plaintiff submitted
that, the application, even if taken of its face value does not make
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out sufficient ground to condone the delay as sought. On the
contrary it reveals the negligence on the part of applicant.
According to him the application cannot be allowed in absence of
a sufficient ground made out to condone the delay.
7. Perusal of application reveals that, the certified copy was
not applied by the applicant immediately. Later application for
certified copy will not stop the limitation that already started
running.
8. One of the grounds raised is that, order was not available
on Website and so could not be gone into which caused delay.
9. Said ground is absolutely unacceptable. If it was not
available on Website and the applicant was genuinely interested
in knowing the contents of the order, he could have applied for
certified copy on the day of order itself or on the next day at the
most. That apart, his advocate could have requested the Court to
allow him to go through the original record of the Court wherein
the order was available. However, this was not done. In absence
of such efforts, blaming on alleged technical glitch is not enough
for the applicant to make out a sufficient ground.
10. Admittedly, the certified copy application was not
mentioning correct suit number and not notice of motion number
as reflected in Exh.A to the application. The receipt at Exh.A
does not mention the notice of motion number and thus one
cannot conclude for what the application was moved, whether it
was to obtain the certified copy of order dated 14.11.2018 or
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something else.
11. Due to mentioning of wrong suit number, the office is
certainly unable to prepare the certified copy by summoning
record. This was also negligence on the part of applicant or his
advocate's clerk. There is no document produced to reveal that,
the advocate's clerk of applicant was ill at any point of time.
Even if, he was ill, he could have contacted the advocate or the
applicant on phone, a facility which is readily available now.
Though it is mentioned that, the advocate for applicant was
absent, his absence is not going to matter much, as the applicant
did not have copy of the order to go through and decide whether
the review is to be sought or not. There is nothing on record to
indicate that after 07.03.2019 certified copy of order is even
applied by the applicant. Considering these circumstances, I do
not find that, the applicant has made out any ground much less
sufficient ground to condone the delay. In the result, I hold that
the application is meritless. Hence, following order:
ORDER
1. Misc. Application No. 42/2019 is rejected.
2. Costs in cause.
(AJIT N. MARE)
Judge,
Date : 22.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 22.03.2021
Transcribed on : 22.03.2021
HHJ Signed on : 23.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
24.03.2021 5.56 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No.3)
Date of pronouncement of Order 22.03.2021
Order signed by P. O. on 23.03.2021
Order uploaded on 24.03.2021
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