Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 7 Suit 470/2020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
ORDER BELOW EXHIBIT7
IN
SUIT NO. 470 OF 2020
1. Sunil L. Jain & Ors. ...Plaintiffs
Vs.
2. Mrs. Sheela Goenka & Ors. ...Defendants
Appearance
Mr. Anuj Shukla learned Advocate for the plaintiffs.
Mr. P.D.Gandhy learned Advocate for defendant No.1
Mr. Farhan Dubhash learned advocate for defendant Nos.2 to 4
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 27th March, 2023
ORDER BELOW EXHIBIT7
By this application the plaintiffs have prayed for setting
aside the no reply order dated 16.09.2021 in notice of motion
No.1220/22. It is the contentions of the plaintiffs that on 07.08.2022
the plaintiffs had informed that defendant No.5 has expired and the
plaintiffs will take necessary steps. On 11.04.2022, the plaintiffs
tendered chamber summons to bring on record legal heirs of defendant
No.5. On 17.06.2022 the defendants filed draft notice of motion. Due
to personal difficulty the plaintiffs' advocate failed to appear on
16.09.2022 which resulted into passing of no reply order in notice of
motion No.2120/2022. On 16.11.2022 the plaintiffs' Advocate was not
feeling well, no argument order came to be passed against the plaintiffs.
The plaintiffs requested to set aside no reply order and no argument
-- 1 of 5 --
2 OBE 7 Suit 470/2020
order passed against them.
2. Defendant Nos.1 to 4 by reply filed at Exh.8 resisted this
application contending that somewhere on or about 17.06.2022 the
defendants filed notice of motion. The plaintiffs sought time to file
reply on 17.08.2022. No reply order was passed against the plaintiffs
on 16.09.2022. when the case was for argument in notice of motion,
on 16.11.2022 the plaintiffs' advocate remained absent which resulted
into passing of no argument order. Notice of motion was heard. In spite
of keeping back the suit till 3.50 p.m. at the request of the plaintiffs,
the plaintiffs' advocate failed to appear. Therefore, the defendants'
argument was heard, order of no argument was passed against the
plaintiffs. The said notice of motions thereafter posted for orders. This
application is nothing but the attempt to prolong the hearing of the suit.
According to the defendants, the application is devoid of any merits, it
deserves to be dismissed. The defendants denied the facts stated in the
application. The plaintiffs did not mention that his advocate was not
feeling well. With these contentions defendant Nos.1 to 4 requested to
dismiss the application.
3. No argument of the plaintiffs. Heard learned advocates for
defendant Nos.1 to 4. No argument of rest of the defendants.
4. Read the application, read the reply filed at Exh.8. Perused
the record. On 17.08.2022 learned advocate for the plaintiffs requested
time to file reply in the motion. On 16.09.2022 none appeared for the
plaintiffs hence notice of motion No.2120/2022 was directed to proceed
without reply. On 16.11.2022 motion Nos.2120/22 and 3328/2019
was for argument, the plaintiff was present, he requested to keep back
-- 2 of 5 --
3 OBE 7 Suit 470/2020
the matter. In spite of keeping back the matter, the plaintiffs' advocate
remained absent therefore, argument of defendant No.1 and defendant
Nos.2 to 4 were heard in NM No.2120/2022 and 3328/2019. On the
same date as the plaintiffs failed to proceed with the argument, no
argument order was passed against the plaintiffs. On 03.02.2023 when
the notice of motions were for orders, the plaintiffs filed the present
application seeking relief to set aside no reply, no argument order.
5. It is the contentions of the plaintiffs that on 16.09.2022
due to personal difficulty of advocate for the plaintiffs reply could not
be filed. Record shows that no steps were taken by the plaintiffs on
16.11.2022 to set aside the said no reply order. On 16.11.2022 the
plaintiffs' Advocate remained absent for argument in the motion. It is
the contentions of the plaintiffs' advocate that on that day he was not
well and therefore, he failed to appear. Except bear words there is no
medical certificate or affidavit to support these contentions. Notice of
motion No.2120/2022 is under Order 7 Rule 11 of CPC and notice of
motion No.3328/2019 is also under Order 7 Rule 11(d) of the CPC.
Substantial rights are involved therein. By order dated 16.09.2022
notice of motion No.2120/2022 is proceeded without reply. By order
dated 16.11.2022 both these motion Nos.2120/2022 and 3328/2019
are proceeded without argument of the plaintiffs. From the record, it
appears that the plaintiffs were not diligent for taking steps for filing
reply and for making their submissions, arguments in the motions. The
motions when kept for orders, the plaintiffs preferred to file this
application for setting aside the aforesaid orders passed against them.
The reasons for setting aside the subject orders is stated as personal
difficulty of the advocate and sickness of the advocate. The suit is for
perpetual injunction. Valuable rights of the parties are involved therein.
-- 3 of 5 --
4 OBE 7 Suit 470/2020
The defendants have filed the subject motion for rejection of the plaint
under Order 7 Rule 11 of CPC. Only in the interest of justice, I am of
the view that opportunity shall be granted to the plaintiff to file reply in
NM No.2120/2022 and to advance their argument. However,
considering the conduct of the plaintiffs and as there is no due diligence
on the part of the plaintiffs it shall be subject to heavy costs. In the
result, I pass following order:
O R D E R
1. Application Exhibit7 is allowed subject to costs of Rs.10,000/
(rupees ten thousand only).
2. Order dated 16.09.2022 directing the notice of motion
No.2120/2022 to proceed without reply is set aside. The plaintiff is
allowed to file reply in the said notice of motion.
3. Order dated 16.11.2022 of no argument by the plaintiff in NM
No.2120/2022 and 3328/2019 is set aside.
4. Costs shall be paid to the defendant Nos.1 to 4 equally, on or before
next date.
5. Application Exhibit7 is disposed of accordingly.
Date : 27.03.2023 (Rajesh A. Sasne)
Dictated on : 27/03/2023. Judge, C.R.No.62,
transcribed on : 28/03/2023. City Civil Court,
Signed on : 29/03/2023. Mumbai.
-- 4 of 5 --
5 OBE 7 Suit 470/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
30.03.2023 at 6.05 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 27/03/2023
Order signed by P.O. on 29/03/2023
Order uploaded on 30/03/2023
-- 5 of 5 --