Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NOS.1469 OF 2020
IN
S.C.SUIT NO. 548 OF 2018
Mr. Ramchandra Savlaram Aher ].. Plaintiff.
V/s.
1. The Maharashtra Housing and ]
Area Development Authority And ]
others. ]..Defendants.
Advocate Ms. Vaibhavi Pawar for the plaintiff.
Advocate Mr. S. Chandrshekhar for the defendant Nos.1 and 2.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.Nos.09).
DATE : 2nd DECEMBER, 2021
ORDER
The Notice of Motion is taken out by the plaintiff for
restoration of S.C Suit No. 548 of 2018 and the Notice of Motion
therein and for restoration of the ad-interim order passed by the Court
therein on 26/01/2018.
2. It is the case of plaintiff that the suit was instituted for the
relief of injunction that the defendants may be restrained from forcibly
dispossessing the plaintiff. Plaintiff has stated that the matter was
posted for the hearing of Notice of Motion on 04/04/2018. However,
from that day till 08/06/2018, the papers were not traceable. The
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matter was ultimately listed on 25/10/2018 for recording evidence.
The court was busy on that day and the matter came to be listed on
10/01/2019 and it was found that the actual date was 02/02/2019.
That date was not recorded by the learned advocate for plaintiff in his
diary.
3. Plaintiff has further stated that his advocate failed to
register the Notice of Motion inadvertently. Hence, the court disposed
of the said Notice of Motion and vacated the interim order dated
26/01/2018. The matter was kept under the caption of compliance on
05/03/2019, 15/04/2019 and 29/06/2019. It was again listed on
16/07/2019 when the court was pleased to dismiss the suit.
4. Plaintiff has further stated that he could not contact his
earlier advocate to enquire about the status and progress of the suit. His
advocate had assured him to call him when the suit would be posted for
hearing. When the learned advocate asked his junior to track the
progress of the suit, he Came to Know that the Notice of Motion was
dismissed on 02/02/2019 and the suit came to be dismissed on
16/07/2019. His learned advocate could not pursue the matter due to
heavy work in the Hon'ble High Court.
5. Plaintiff has further stated that, he should have filed the
present Notice of Motion on or before 29/03/2020. However, due to
national lockdown he could not file the same. He has prayed for the
benefit of the order of Hon'ble Apex Court regarding limitation. Plaintiff
has stated that the delay caused in filing the present notice of motion is
not deliberate. His earlier advocate refused to take steps in the matter
due to misunderstanding regarding the professional fees.
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6. Plaintiff has further stated that he came in contact with the
present advocate in the last week of August 2020 and engaged him in
the present matter. Plaintiff was under bonafide impression that his
advocate was pursuing the matter and hence did not attend the same.
He has stated that he has moved this Notice of Motion within prescribed
period from the date of knowledge of the dismissal order. He has also
prayed for condonation of delay if any.
7. Defendants Nos. 1 and 2 have filed reply and have denied
all the contentions in the Notice of Motion. They have stated that the
Notice of Motion is barred by limitation. Plaintiff has caused delay due
to the negligence. It is further stated that plaintiff is trying to take
disadvantage of the lockdown imposed due to pandemic. Plaintiff has
no case on merits. It is further stated that plaintiff has not explained
delay of each and every day. For all these reasons defendants Nos. 1
and 2 have prayed for dismissal of the Notice of Motion.
8. Considering the pleadings and documents on record and
submissions of both learned advocates, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff has proved sufficient cause
for condonation of delay in taking out this
Notice of Motion?
In the
Affirmative
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2 Whether plaintiff is entitled to the relief of
restoration of the suit?
In the
Affirmative
3 Whether plaintiff is entitled to the relief of
restoration of the interim orders as prayed
for?
In the
Affirmative
4 What Order and decree? As per Final Order
R E A S O N S
AS TO POINT NOS.1 TO 4 :
9. As all the points are related to each other, they are
discussed at once to avoid the repetition.
10. It appears that on 26/01/2018, my learned predecessor
was pleased to pass interim order in terms of prayer clause (B) and also
leave was granted to plaintiff to register the notice of motion. The
matter was thereafter listed on 29/01/2018, 13/03/2018, 15/03/2018,
16/03/2018, 21/03/2018, 04/04/2018, 09/04/2018, 20/04/2018, and
08/06/2018. On all these dates after 21/03/2018, the record and
proceeding were not found. On 25/10/2018, the board was discharged.
On 30/10/2018 and 15/12/2018 plaintiff was absent. On 07/01/2019,
the plaintiff was present. On 10/01/2019, the matter was wrongly
shown on the board when the matter was already adjourned to
02/02/2019.
11. On 02/02/2019, it appears that after granting several
opportunities, plaintiff did not tender the registered Notice of Motion.
My learned predecessor was pleased to dispose of the Notice of Motion.
The interim order passed on 26/01/2018 was vacated by a specific
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order to that effect. Plaintiff was directed to provide copies of plaint and
Annextures to the defendants and the matter was listed on 05/03/2019.
12. On 05/03/2019, nobody was present for the plaintiff.
Learned advocate for defendants prayed for dismissal of the suit but the
suit was not dismissed on that day. Thereafter, the matter was listed on
15/04/2019. Plaintiff was absent and the matter was adjourned on
29/06/2019. Plaintiff was again absent. He failed to file service
affidavit for defendant number 3. Hence, the suit came to be dismissed
against defendant No. 3 on that day and the matter was adjourned to
16/07/2019. Plaintiff was absent on that day. Hence, my learned
predecessor was pleased to dismiss the suit, as the plaintiff failed to
supply copies of the plaint and its Annextures to the defendants Nos. 1
and 2.
13. In the above circumstances, it is the case of plaintiff that his
advocate had informed him that he would call plaintiff when the matter
would be posted for final hearing. Hence, plaintiff did not keep the
track of the matter. Learned advocate for plaintiff relied upon judgment
in the case of Ashok Ravji Vadodriya and others Vs Municipal
Corporation of Greater Bombay reported in 2003 (4) Bom. C.R. 28. It is
held that,
“The disturbing feature of the impugned order is the
reasoning recorded by the learned Judge in paragraph 7
thereof while rejecting the Notices of Motion for
restoration of all three suits to file. Paragraph 7 reads
thus:
“7. I may make clear that it is the duty of litigant to
attend the Court and convey adjourned date to his
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Advocate who represents him on such adjourned
dates. It is not that the Advocates or their clerks
are to take adjourned dates and convey it to the
litigants. This is unwarranted and undesired
practice that is being followed and then on their
failure to convey the dates the litigants come out
with shelter that wrong of the Advocates should
not result in penalising them. This practice is
bound to be curbed so that the litigants would
know their duty and Advocates need not extend
such services and if they do let their litigants suffer
for laches on the part of Advocates. This in fact
creates breach of trust. That part, in the present
case all the plaintiffs have just not bothered about
their suits and even after such knowledge on
11.1.2002 which fact is not supported by any
indpendent evidence. The Notices of Motion for
restoration taken out on 28.01.2002 are just
beyond the period of limitation. The delay being
not explained at all. I, therefore, do not find any
of the plaintiffs deserving the condonation either
of delay or of their laches and therefore reject all
these Notices of Motion of restoration.”
14. Learned advocate for plaintiff further submitted that the
negligence on the part of advocate for plaintiff should not result in
injustice to the plaintiff. It appears that since the institution of the
plaint, plaintiff did not bother to take update regarding the progress of
his suit. He was solely depending upon his learned advocate. It is
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important to note that now a days every information regarding the
litigation including its stage, business on that day and next date are
available online and therefore it cannot be said that the plaintiff could
not get knowledge of the suit and its progress as his advocate did not
inform him. Plaintiff even did not bother to tender the registered
Notice of Motion in which ad-interim relief was granted in his favour by
my learned predecessor. Plaintiff did not provide sufficient copies of
plaint and documents annexed thereto for supplying the same to the
defendants Nos. 1 and 2. Therefore, the gross negligence of plaintiff is
surfacing at each and every stage.
15. The suit came to be dismissed on 16/07/2019. Plaintiff has
not specified as to exactly on which date he came to know about the
dismissal of Notice of Motion and the suit. He is stating that the motion
ought to have been filed on or before 29/03/2020 but he could not file
the same due to national lockdown. Plaintiff has not produced any
material in support of his contentions as such.
16. Admittedly, the limitation period was extended by the
orders of Hon'ble Supreme Court of India from time to time due to the
national lock-down during the pandemic. However when the plaintiff
has not brought on record that his period of limitation was the ending
during the period of lock-down, it is difficult to hold that he was
entitled to the benefit of the order passed by the Hon'ble Supreme Court
of India.
17. In the above facts and circumstances, the fact remains that
it was necessary for the learned advocate for plaintiff to get the Notice
of Motion registered by following the procedure. It was also necessary
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for him to supply the necessary number of copies of the plaint and
documents annexed thereto. The personal presence of the plaintiff was
not necessary for all this work. The advocate failed to perform his duty
and ultimately. the plaintiff has to face the consequences of the same.
In view of the judgment of Hon'ble Bombay High Court referred in the
case of Ashok (Supra), the plaintiff cannot be allowed to suffer for the
negligence of his learned advocate. In the circumstances, the exact
quantum of delay is difficult to acertain. It cannot be said that plaintiff
is entitled to the benefit of the order of Hon'ble Supreme Court of India
regarding extension of the limitation period.
18. In order to adjudicate the matter fully, it is necessary to
give opportunity to both the parties of being heard. In the present
matter, if the plaintiff is denied with the opportunity of being heard, he
will suffer injustice and that too for the failure of his advocate.
Whatever delay caused to the proceeding, can be compensated in the
terms of money by imposing heavy costs on the plaintiff. Therefore, I
have come to the conclusion that the plaintiff has shown sufficient
cause for condonation of delay and he is entitled to get the delay
condoned as well as the suit restored to its original stage.
19. Plaintiff has prayed for restoration of the ad-interim order
passed in his favour on 26/01/2018. It is important to note that the
Notice of Motion filed by plaintiff was dismissed by my learned
predecessor on 02/02/2019 itself. On that day, by an express order the
ad interim relief granted in favour of plaintiff was also vacated. This
makes it clear that on the date of dismissal of the suit that it is
16/07/2019, no ad interim order was in existence in favour of plaintiff.
However when the Notice of Motion is restored, it is necessary to
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restore the interim relief which was in existence on the date of dismissal
of the Notice of Motion
20. In view of all above discussion, I have come to the
conclusion that plaintiff is entitled to the condonation of delay and
restoration of suit and the Notice of Motion. He is also entitled for the
relief of restoration of the interim relief. Therefore, I answer point Nos.
1 to 3 in the affirmative and in answer to point No. 4, I proceed to pass
following order.
O R D E R
1. Notice of Motion No. 1469 of 2020 is allowed
subject to payment of cost of Rs. 2,000/- payable by the
plaintiff to each of the defendants within 30 days from
the date of this order.
2. On payment of cost by the plaintiff as above, Suit
No. 548 of 2018 be restored to its original stage that is
hearing of Notice of Motion and service of plaint and
documents annexed thereto to defendants Nos. 1 to 3.
3. The interim order dated 26.01.2018 is hereby
restored.
4. Notice of Motion No. 1469 of 2020 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 02.12.2021 Gr.Mumbai.
Dictated on: 02.12.2021
Typed on : 02.12.2021
Signed on : 16.12.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16.12.2021 AT 3.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
Nos.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. Nos.09)
Date of Pronouncement of
Judgment/Order
02.12.2021
Judgment/Order signed by P.O. on 16.12.2021
Judgment/Order uploaded on 16.12.2021
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