Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1653/19 ..1.. Suit No.2097/14
CNR No.MHCC0145522019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1653 OF 2019
IN
SUIT NO.2097 OF 2014
Mrs. Shweta V. Kunkavlekar .. Plaintiff
Versus
1. Mr. Arun A. Teli .. Defendant
Ms. Bharti Naik, Advocate for plaintiff
Ms. Ruksar Ansari, Advocate for defendant
CORAM : HER HONOUR JUDGE
SMT. U. J. MORE
(COURT ROOM NO.31)
DATE : 18th November, 2019
: ORDER :
1. Notice of motion filed by defendant in condone the delay for
setting aside the Exparte order dated 16.02.2019 against the
defendant. It is contended that the defendant appears in view of service
of summons and filed written statement and subsequently matter was
kept for draft issues. Thereafter, the matter kept for documents
admission and denial and was adjourned on 07.02.2012 and the
advocate of the plaintiff has not served the copy for documents
admission and denial. He try to contact his advocate but could not
succeed and due to financial crises he failed to takes appropriate steps
in the said matter.
2. He further stated that his mother was not well, he was held
up for her treatment. He is ready to file her medical certificate of dated
-- 1 of 5 --
NM No.1653/19 ..2.. Suit No.2097/14
25.02.2019. He came to know the matter was kept to Exparte
Judgment.
3. I have gone through reply to notice of motion is filed by
plaintiff. He is denied all the allegations never caused to plaintiff. He is
admitted the written statement filed on record. Issues were framed the
defendant failed to attain the hearing, his advocate has served the
affidavit of evidence with the compilation the documents of defendant
as per direction of Hon'ble Court on 04.12.2017 and accordingly
objected this notice of motion being false, sham and bogus,
misconceive.
4. Heard Ld. Advocate Ruksana Ansari h/f Suraj Almeda it is
argued that due to illness of defendant's mother. He could not gave
contention to the proceeding for this court. It was not indication of the
witness to delay the trial and requested the application be allowed
subject to minimum cost.
5. Ld. Adv. For the plaintiff Ms. Bharti Naik here for argued that
in spite of serving affidavit of evidence, defendant has not take any
steps delay the trail.
6 Heard both the sides, perused all the documents.
7. It transpires that my Ld. Predecessor was pleased to passed
the order as adjourned “Exparte Judgment”. Whereas the progress of
the proceeding i.e. roznama transpires it Exhibit 3 written statement
filed by defendant on 08.10.2015. The matter adjourned to 30.10.2015
for draft issues. On 30.10.2015 both the parties and advocates are
-- 2 of 5 --
NM No.1653/19 ..3.. Suit No.2097/14
absent, 14.01.2016, 14.03.2016, 09.06.2016, 20.07.2019, 01.10.2016,
on 28.11.2016 Ld. Advocate for the plaintiff remain present and matter
was adjourned for recording of evidence on 20.01.2017. on 04.10.2017
affidavit of evidence filed by plaintiff, on 04.02.2019 Ld. Predecessor
was pleased to passed to order for Exparte Judgment.
8. It is settled law to set aside Exparte order that there should
be a sufficient and reasonable cost which would depend upon facts and
circumstances of the each case. But there should not be in delaying
tactics and non cooperation on the part of the any party to seek were
he cannot seek indulgence of the court. It is the contention of the
defendant due to the illness of the his mother which is mentioned on
solemn affirm through affidavit and due to the some financial crises He
could not talk to lawyer. According to me, it is reasonable cause
reasonable to delay. It is money suit for recovery of money if the suit
proceeded Exparte it will be an injustice on the other side. It is
admitted that he could not cross examine the plaintiff as the
circumstances were beyond the control of him.
9. The rules of procedure are made the advanced the cause of
justice, equity and substantially cause of justice always demand
opportunity. Therefore, with view to decide real point in controversy
once for all on merit and with a view to avoid multiplicity of proceeding
this delay is require to be condoned by setting aside Exparte order
dated 16.02.2019. However, considering the negligence at the hands of
defendant certain cost is require to be imposed. Hence, I pass following
order :
: ORDER :
1. Notice of Motion No.1653 of 2018 is made absolute in terms
-- 3 of 5 --
NM No.1653/19 ..4.. Suit No.2097/14
of prayer clause No. (a) to (d) subject to cost of Rs.2,000/ by
defendant to plaintiff on or before next date.
2. After payment of cost permission is granted to defendant for
cross examine the plaintiff
3. Defendant is directed to cross examine the plaintiff on next
date and that too by payment of cost.
(Pronounced in Open Court)
(U.J.More)
AdHoc Judge
City Civil & Sessions Court,
Date :18/11/2019 Gr. Bombay
1. Dictated on : 18/11/2019
2. Transcribed on : 18/11/2019
3. HHJ signed on : 18/11/2019
-- 4 of 5 --
NM No.1653/19 ..5.. Suit No.2097/14
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18.11.2019, 4.30 p.m.
UPLOAD DATE AND TIME Mr.G.R.Suryawanshi
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri.U.J. More
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
18.11.2019
JUDGMENT/ORDER signed by P.O.
on
18.11.2019
JUDGMENT/ORDER uploaded on 18.11.2019
-- 5 of 5 --