Final Order 1

Order Details: Notice of Motion
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MHCC010050992019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1796 OF 2019
IN
S. C. SUIT NO. 7212 OF 2006
HIGH COURT SUIT NO. 3041 OF 2006
Smt. Taramatidevi wd/o ]
Purshottamdas Mohta. ]..Plaintiffs.
V/s.
1. Laxmi Asbestors Products ]
Ltd. and others. ]..Defendants.
Advocate Ms. Sonali Punekar for the plaintiff.
Advocate Mr. S. Choudhari for defendant No.1.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 21st JUNE 2023
ORAL ORDER
The plaintiff has taken out present Notice of Motion for
recalling and setting aside order dated 21.02.2019-“Evidence of plaintiff
is closed”.
2. The plaintiff has filed Affidavit in support of Notice of
Motion. It is the contention of the plaintiff that her advocate mentioned
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the date in the diary as 22.02.2019 instead of 21.02.2019 by mistakenly
and the plaintiff and her advocate assumed that the said matter was
listed on 22.02.2019. On the next date, the plaintiff’s advocate came to
know that the above matter was listed on 21.02.2019 and this Court has
passed the order and closed the evidence of the plaintiff. There is no
deliberate intention to delay for further evidence. The plaintiff is senior
citizen and residing at Ahmadabad and due to issues of travelling, she
could not attend the matter. If the present Notice of Motion is not
granted, the plaintiff would suffer irreparable loss, harm and injury.
The balance of convenience lies is in favour of the plaintiff. Hence, it is
prayed that Notice of Motion be made absolute.
3. No reply has been filed by the defendants to the Notice of
Motion. However, the learned advocate for the defendant No.1 argued
the matter and opposed the Notice of Motion. It is argued that the
plaintiff has not shown sufficient cause for allowing Notice of Motion.
Hence, Notice of Motion be dismissed. Alternatively, it is prayed that if
Notice of Motion is allowed, cost be imposed on the plaintiff.
4. I have also heard the learned advocate for the plaintiff who
submitted that inadvertently, the date mentioned in the diary as
22.02.2019 instead of 21.02.2019. There is no deliberate intention.
Hence, prayed that in the interest of justice, the order of “Evidence of
plaintiff is closed” be set aside.
5. Perused Affidavit in support of Notice of Motion and
Roznama. It appears that the plaintiff is senior citizen and she is
residing at Ahmadabad. There is also issue of travelling. It also appears
that there is
bona-fide mistake on the part of her advocate also. The
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plaintiff should not be allowed to suffer due to the fault of her
Advocate. Hence, in my considered opinion, Plaintiff deserves one
opportunity to get her suit tried on merits. She has shown sufficient
cause. In order to decide the suit on merits, it would be just and proper
to allow Notice of Motion by imposing costs upon plaintiff. Hence, I
hold that the present Notice of Motion deserves to be allowed subject to
costs. With this, I proceed to pass the following order:-
ORDER
1. Notice of Motion No. 1796 of 2019 is hereby
allowed subject to the payment of costs of Rs.1,000/-
payable by the plaintiff to defendant No.1 on or
before next date.
2. On payment of costs, order dated 21.02.2019
passed by this Court-“Evidence of plaintiff is closed”
is set aside and the plaintiff is allowed to lead the
evidence.
3. On failure to make compliance, Notice of Motion
will be dismissed automatically.
4. Notice of Motion No.1796 of 2019 is disposed of
accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 21.06.2023 Gr. Bombay.
Dictated on : 21.06.2023
Transcribed on : 21.06.2023
Signed on : 21.06.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22/06/2023 At 4.00 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
21.06.2023
Judgment/Order signed by P.O. on 21.06.2023
Judgment/Order uploaded on 22.06.2023
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