Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.1566/2018 in Summary Suit No.3973/2009
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1566 OF 2018
CNR NO.: MHCC010048752018
IN
SUMMARY SUIT NO. 3973 OF 2009
(HIGH COURT SUMMARY SUIT NO. 1891 OF 2009)
Roshan Lal Bhasin ...Plaintiff
Versus
Subhash Khanna ...Defendant
Appearances:
Advocate Mr. Tripathi for the plaintiff.
None for the defendant.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 20th JUNE, 2019.
ORAL ORDER
1. Plaintiff has filed this Notice of Motion to condone delay of 4
years, 9 months and 5 days and prayed to set aside the order of
dismissal the suit.
2. Plaintiff has stated that his previous Advocate was old aged
person and was irregularly appearing in Courts due to his old age.
Plaintiff has further stated that he used to inquire with him to find out
whether the defendant had deposited the money as per the order or
not, but he told him that plaintiff should wait as time was granted to
the defendant to deposit and accordingly he waited. Plaintiff has further
stated that his Advocate told him that since the pecuniary jurisdiction of
the City Civil Court has been enhanced, the suit has been transferred to
-- 1 of 5 --
:2: N.M. No.1566/2018 in Summary Suit No.3973/2009
Hon'ble City Civil Court. Plaintiff has further stated that his papers with
the previous Advocate were not traceable and his Advocate was not able
to trace out them. Plaintiff has further stated that he could not trace his
papers and thereafter he could not contact with his previous Advocate.
Plaintiff has further stated that in the month of March, 2018 he found
the papers of the above case which were kept in the store rooms where
other papers were lying and he contacted immediately his Advocate but
he told him that he stopped practicing in the Bombay High Court and
asked him to engage other Advocate. Plaintiff has further stated that his
present Advocate came to know that the suit was transferred to the City
Civil Court and the same was dismissed on 29.06.2013 due to default of
plaintiff and his Advocate.
3. Plaintiff has further stated that record and proceeding of this case
was found in the month of March, 2018. Plaintiff has further stated that
he was not aware that the suit was transferred to the City Civil Court
and same was dismissed for default. Plaintiff has further stated that
neither he nor his previous Advocate were informed that suit was
transferred to the City Civil Court and even the office of this Court has
not sent any notices to him or to his Advocate about listing of the suit
before the Court Room No.26. Plaintiff has further stated that
defendant has not deposited the money as per the Order and thus he is
entitled to get decree against defendant, but the suit is dismissed for
default. Plaintiff has further stated that there is sufficient cause of non
appearing in the above matter and prayed to condone delay and restore
the suit. Plaintiff has further stated that he had full trust and faith on
his previous Advocate that he would guide him as to what steps to be
taken and would also take care of the matter, but due to his old age and
nontraceable of records with him or plaintiff, he and his Advocate lost
-- 2 of 5 --
:3: N.M. No.1566/2018 in Summary Suit No.3973/2009
the track of the case. Plaintiff has further stated that he recently came to
know that the defendant had left the premises and had gone to stay at
Thane and prayed to restore the suit.
4. It appears defendant did not appear and file reply to this Notice
of Motion.
5. Heard argument of the Ld. Advocate for the plaintiff.
6. It appears according to plaintiff on Summons for Judgment the
Order was passed on 07.12.2010. It appears that as the defendant failed
to deposit money as per Order on Summons for Judgment, therefore,
matter proceeded without Written Statement of defendant and as
plaintiff failed to lead evidence suit is dismissed in default on
29.06.2013. It appears the present Notice of Motion is filed after more
than four years by plaintiff. Plaintiff has stated that the papers were not
traceable by him and his Advocate. It is further stated that the papers
were found by him in the storeroom. The fact that plaintiff since 2010
to 2018 did not take any efforts to appear in the suit shows that he was
not at all trying to pursue his suit. The fact that the papers were not
traceable by plaintiff for so many years also shows that he was not
diligent and careful about his suit. It appears that when in the month of
March 2018, he find out the papers then he came to Court and then
proceeded to file his Notice of Motion. The fact that the earlier
Advocate of plaintiff was an old age person cannot be a ground for non
appearing in the suit and further not taking steps to restore the suit for
so many years. Plaintiff has stated that he was not informed about the
suit is transferred to City Civil Court and no Notice was given to him by
City Civil Court about listing of suit before Court Room No.26. It is
-- 3 of 5 --
:4: N.M. No.1566/2018 in Summary Suit No.3973/2009
expected that plaintiff to remain present in the suit on each date and
know orders passed in his suit and therefore there is nothing to show
that it was needed to give such notices to plaintiff. As discussed above,
the reason stated by plaintiff for delay in filing Notice of Motion and set
aside order of dismissal are not at all reasonable and satisfactory as
plaintiff was not diligent to pursue his suit. There are no sufficient
grounds to allow this Notice of Motion. Hence, following order:
ORDER
Notice of Motion No.1566 of 2018 stands rejected.
(S.P. AGARWAL)
Judge,
Date: 20.06.2019. City Civil Court,
Gr. Bombay.
Dictated on : 20.06.2019
Transcribed on : 20.06.2019
Signed on : 20.06.2019
-- 4 of 5 --
:5: N.M. No.1566/2018 in Summary Suit No.3973/2009
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27.06.2019 At 02:43 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
20.06.2019
Judgment/Order signed by P.O. on 20.06.2019
Judgment/Order uploaded on 27.06.2019
-- 5 of 5 --