Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.1656/2019 ..1.. In S.C. Suit No.2236/2017
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1656 OF 2019
IN
S.C. SUIT NO. 2236 OF 2017
The Honorary Secretary/Chairman
Navjivan CoOperative Housing Soc. Ltd.,
Dr. D. B. Marg, Mumbai Central,
Mumbai 400 008. ...Plaintiff
Versus
1) Shri Bharat Popatlal Patadia
Residing At : 1 Sharda, Ijintan Road,
Near Rajesh Tailor, Surendra Nagar,
Gujarat 363 002.
Presently Residing At : 11/32,
Navjivan CoOperative Housing Soc.Ltd.,
Dr. D. B. Marg, Mumbai Central,
Mumbai 400 008.
2) Shri Kishor Popatlal Patadia
Residing At : 703, Rajgruhi Tower,
80 Ft. Road, Station Road,
Surendra Nagar, Gujarat 363 002.
3) Shri Girish Popatlal Patadia
Residing At : 11/32,
Navjivan CoOperative Housing Soc.Ltd.,
Dr. D. B. Marg, Mumbai Central,
Mumbai 400 008.
4) Shri Chirag Popatlal Patadia
Residing At : 11/32,
Navjivan CoOperative Housing Soc.Ltd.,
Dr. D. B. Marg, Mumbai Central,
Mumbai 400 008.
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Notice of Motion No.1656/2019 ..2.. In S.C. Suit No.2236/2017
5) Shri Ranjit Singh Chadha
Residing At : Building No. 15, Flat No. 40,
Navjivan CoOperative Housing Soc. Ltd.,
Dr. D. B. Marg, Mumbai Central,
Mumbai 400 008. ...Defendants
Appearance :
Mr. C. N. Gole, Advocate for Plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 16TH JANUARY, 2021.
ORAL ORDER
By this notice of motion, the plaintiff is seeking setting
aside of an order dated 16.08.2018 by which the suit was dismissed for
nonprosecution against the defendants No. 1 to 4, & also, for
restoration of suit against defendant No. 5 by setting aside earlier order
dated 27.07.2018.
2. The affidavit of service indicates that, notice of motion is
dully served on defendants No. 1 to 5. My Predecessor has passed an
order on 07.02.2020 that the notice of motion shall proceed exparte
against the defendants.
3. At the inception it needs to be mentioned that, the
Advocate for applicant submits that no prayer is sought against
defendant No. 5 and so he is pressing for restoration of suit only against
defendants No. 1 to 4. In view of this, notice of motion is being
considered for restoration of suit only to the extent of defendants No. 1
to 4.
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Notice of Motion No.1656/2019 ..3.. In S.C. Suit No.2236/2017
4. Defendants have not filed reply.
5. The affidavit in support of notice of motion mentions that
on 16.08.2018 the Advocate for plaintiff appeared in the Court at 12.25
pm., as he was busy in Court Room No. 12. However, by that time the
suit came to be dismissed against defendants No. 1 to 4.
6. Advocate for applicant submits that, the roznama dated
16.08.2018 also marks his presence at 12.25 pm. According to him, his
absence was neither deliberate nor intentional, but on account of his
business in Court Room No.12. He also submitted that this is sufficient
explanation for his absence when the matter was called out for hearing.
7. It is settled legal position that, the dismissal of suit can be
set aside if sufficient explanation is given by the plaintiff for his absence
on the date when the suit was called out for hearing. Proceedings
indicate that defendants No. 1 to 4 had filed written statement and the
Advocate for plaintiff was under impression that the suit will be fixed
for issues. It is also apparent from the record of the Court that soon
after dismissal, the Advocate for plaintiff appeared before the Court.
Considering these circumstances, the ground that he was busy in Court
Room No. 12 is acceptable. As the consequence thereof it is also
acceptable that the absence of Advocate for the plaintiff was neither
intentional nor deliberate. In such circumstances, the dismissal of the
suit needs to be set aside in order to afford an opportunity to the
plaintiff to have recourse to justice. Hence, following order:
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Notice of Motion No.1656/2019 ..4.. In S.C. Suit No.2236/2017
ORDER
1. Notice of Motion No. 1656/2019 is allowed.
2. The suit bearing S.C. Suit No. 2236/2017 is
restored to its original stage as against defendants
No. 1 to 4.
3. Notice of Motion or Chamber Summons, if any,
filed in the suit also stands restored to its original
stage.
4. The applicant shall serve defendants No. 1 to 4
after restoration of the suit.
5. No order as to cost.
(AJIT N. MARE)
Judge,
Date : 16.01.2021 City Civil Court, Gr. Mumbai.
Dictated On : 16.01.2021
Transcribed on : 18.01.2021
HHJ Signed on : 18.01.2021
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Notice of Motion No.1656/2019 ..5.. In S.C. Suit No.2236/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
16.01.2021 4.49 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
16.01.2021
Order signed by P. O. on 18.01.2021
Order uploaded on 18.01.2021
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