Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1474/18 ..1.. Suit No.2733/12
CNR No.MHCC010046282018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1474 OF 2018
IN
SUIT NO.2733 OF 2012
(High Court Suit No.373 of 2012)
Jitendra Harakchand Savla & Anr. .. Plaintiffs
Versus
Ashish Pradyuman Bankharia and Ors. .. Defendants
Learned Advocate Rajesh Patil for plaintiffs
Learned Advocate P. D. Gandhy for defendants
CORAM : HER HONOUR JUDGE
SMT. ULKA L. JOSHI
(COURT ROOM NO.31)
DATE : 09th April, 2018
: ORDER :
1. Order dated 28/11/2017 is under challenge in this notice of
motion.
2. Story put forth by defendant in short is that,
On 28/11/2017, suit is on the stage of reply of defendant to
Chamber Summons No.894 of 2017. Due to miscommunication and
misunderstanding his advocate could not file reply on that day.
Further, he was involved in some personal emergency. Therefore he
could not appear and file reply. Due to this court has passed no reply
order to Chamber Summon No.894 of 2017 . Hence this notice of
motion for recalling of that order.
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NM No.1474/18 ..2.. Suit No.2733/12
3. Plaintiff has not filed any reply to notice motion. However, he
argued that no reply order is passed on 28/11/2017 and notice of
motion is taken on 09/03/2018. Notice of motion is having no whisper
about circumstances which prevented defendant from taking out this
notice of motion at an earliest. Further grounds shown are not
justifiable. On these grounds he prayed for rejection of notice of motion.
4. Perusal of record and proceeding shows that on 28/11/2017
defendant and his advocate were absent. Therefore no reply order is
passed by this Court. Thereafter on 04/01/2018 and 01/03/2018
advocate for defendant no.1 was present. In spite of this defendant
failed to take out notice of motion on those dates. Thus, there is delay
in taking out this notice of motion. Admittedly, notice of motion is
having no whisper about any circumstances which prevented defendant
from taking out notice of motion on those dates.
5. However, fact cannot be sidelined that rules of procedure are
made for advancing cause of justice. Equity always demands
opportunity to each and every party. Considering this and with a view
to decide chamber summons no.894 of 2017 once for all on merit notice
of motion deserves to be allowed. At the same time negligence of
defendant is require to be compensated in terms of money. Hence
following order:
ORDER
1. Notice of Motion No.1474 of 2018 is made absolute in terms
of prayer clause no.(a) and (b) subject to cost of Rs.1000/ by
defendant to plaintiff on or before next date.
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2. After payment of cost defendant is permitted to file reply to
Chamber Summons No.894 of 2017.
3. Defendants to comply order on or before next date.
(Smt. U. L. Joshi)
Judge
City Civil & Sessions Court,
Date : 09/04/2018 Gr. Bombay
Typed on : 09/04/2018
HHJ signed on :
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NM No.1474/18 ..4.. Suit No.2733/12
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26.04.2018, 11.39 a.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Smt.U.L. Joshi
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
09.04.2018
JUDGMENT/ORDER signed by P.O.
on
26.04.2018
JUDGMENT/ORDER uploaded on 26.04.2018
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