Final Order 1

Order Details: Notice of Motion
Pdf Text: Nbhm,CNR No. MHCC010050632019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1787 OF 2019
IN
MISCELLANEOUS APPEAL NO.79 OF 2017
Dosu Ardeshir Bhiwandiwalla & Anr. ...Applicants/
Original Appellants.
V/s.
The Board of Trustees of the Port of Mumbai ...Respondent.
Appearances:
Learned Adv. Mr. Akshay Pawar H/f Adv. Vasim Siddiqui for applicants.
Learned Adv. Ms. Tulsi Dhami I/b Motiwalla & Co. for respondent.
CORAM : HIS HONOUR JUDGE
SHRI SANDIPKUMAR C. MORE
(C.R.No.04)
DATED : 16th October, 2019.
: ORAL ORDER :
The applicants i.e. original appellants have taken out this Notice
of Motion for setting aside order dated 04.03.2019 passed by the earlier
Presiding Officer under which the main Miscellaneous Appeal
No.79/2017 was dismissed in default, by condoning the delay of 29
days. The applicants have also prayed for restoration of said appeal and
Stay Application No.56/2017 to its original stage.
2. According to the applicants, they have filed the aforesaid appeal
and stay application challenging the legality of exparte judgment and
decree dated 21.03.2017 of the Estate Officer, Mumbai Port Trust. They
further contended that though their advocate was attending each and
every date of the said appeal, but somehow their advocate inadvertently
noted some other date i.e. 04.04.2019 instead of 04.03.2019 and
therefore, could not attend the Court on 04.03.2019 and therefore, the
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NM 1787/19 in M.A. 79/17 .. 2 .. Order
Miscellaneous Appeal alongwith Stay Application was dismissed in
default on that date.
3. On the contrary, the respondents strongly opposed the Notice of
Motion under their reply dated 12.06.2019 and additional affidavit in
reply dated 06.08.2019. They contended that the applicants are
deliberately trying to delay the matter. Moreover, their advocate was
also not present on many occasions in respect of that appeal. They
further contended that the reason for delay mentioned by the
applications is also not proper. As such, they prayed for dismissal of
Notice of Motion.
4. Heard rival submissions. Also perused the documents on record.
5. Admittedly, there is delay of 29 days in filing the present Notice
of Motion. Further it is significant to note that the advocate for
applicants was also found absent on many dates of the main appeal.
Further the earlier Presiding Officer, during the pendency of this Notice
of Motion, has granted interim stay for not to execute order of Estate
Officer in the mean time. Under such circumstances, though the reason
given for dismissal of appeal by the applicants is not convincing, but it
is a cardinal principle of law that nobody should be condemned
unheard. The applicants are ready to prosecute the appeal seriously, if
restored to the file. Therefore, by imposing suitable cost, one
opportunity can be given to the applicants to contest their appeal
No.79/2017 on merit. Hence, I pass the following order.
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NM 1787/19 in M.A. 79/17 .. 3 .. Order
ORDER
1. The Notice of Motion No.1787 of 2019 is hereby allowed
in terms of prayer clause (a) & (b), subject to cost of
Rs.2,000/ to be paid by applicants to respondent till
next date.
2. The order dated 04.03.2019 of dismissal of
Miscellaneous Appeal No.79/2017 and Stay Application
No.56/2017 is set aside, by condoning the delay of 29
days.
3. After deposit of cost, the aforesaid appeal and stay
application be restored to its original stage.
(SANDIPKUMAR C. MORE)
1st Additional Principal Judge,
(C.R.No.4)
Date : 16.10.2019. City Civil Court, Gr. Mumbai
Dictated on : 16.10.2019.
Transcribed on : 16.10.2019.
Signed on : 16.10.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.10.2019, at 4.59 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S.C. More
Court Room No.4
Date of Pronouncement of Judgment/order 16.10.2019
Judgment/order signed by P.O. on 16.10.2019
Judgment/order uploaded on 17.10.2019
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