Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1696 OF 2020
(CNR NO. MH CC01-005107-2020)
IN
S.C. SUIT NO. 2753 OF 2011
1. Smt. Shakuntala Dattatraya ]
Nagalkar and another. ].. Plaintiffs.
V/s.
1. M/s. J. Gala Enterprises and ]
others. ]..Defendants.
Advocate Mr. Rajesh Dixit for the plaintiff.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 13th OCTOBER 2022
ORAL ORDER
This Notice of Motion is taken out by the plaintiff No.2 for
condonation of delay in taking out Notice of Motion and setting aside
the dismissal order dated 19.10.2018 and for restoration of Suit.
2. The plaintiff No.2 submitted that the plaintiff No.1 is his
mother who expired during the pendency of suit on 26.12.2016 leaving
behind him as her only heir and legal representatives. He further
submitted that he is residing at Sindhudurg and the plaintiff No.1
executed Power of Attorney in favour of plaintiff No.2. He is the senior
citizen. He is residing at his native place. But the concerned advocate
-- 1 of 5 --
2
lost sight of the matter and not informed him that the matter was fixed
on board on 19.10.2018. On that day, also the concerned advocate was
not appeared and the suit was dismissed for want of prosecution. When
the plaintiff inquired with the concerned advocate and find that what is
status of the matter, then he came to know that the suit was dismissed.
He further submitted that the wife of plaintiff No.2 is also not keeping
well and bed ridden. Therefore, he could not attend the Court and
prayed for allowing Notice of Motion.
3. The Notices were served to the defendants, but they failed
to appear and file reply to the Notice of Motion.
4. I have heard learned advocate for Plaintiff at length.
5. Considering the Notice of Motion, documents on record
and submissions of both learned advocates, following points arise for
my determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether Plaintiff No.2 has proved sufficient
cause for condonation of delay and
restoration of suit No. 2753 of 2011?
In the
Affirmative
2 What order? Notice of Motion is
allowed.
-- 2 of 5 --
3
R E A S O N S
AS TO POINT NOS.1 AND 2 :
6. The suit came to be dismissed on 19.10.2018. The Notice
of Motion came to be filed on 11/11/2020. Therefore, it is appearing
that there is delay. Plaintiff has explained that the delay by saying that
he is residing in his native place and due the personal problem of his
advocate , lost track of the suit and did not attend the Court. Therefore,
he could not file a Notice of Motion for restoration of the suit.
7. However, in the present matter, it is to be noted that the
suit came to be dismissed due to absence of learned advocate. A party
cannot be allowed to suffer due to the absence of learned advocate. It
is necessary to adjudicate the matter on merits. Considering the reasons
mentioned in the Notice of Motion and relief claimed by the plaintiff in
the suit, it will better to restore the suit. If the suit is not restored,
irreparable loss injury and harm will be caused to the plaintiff. In the
circumstances, I have come to the conclusion that the Notice of Motion
can be allowed subject to payment of heavy cost due to the negligence
of the Plaintiff No.2 and his advocate. Accordingly, I answer point No. 1
in the affirmative and in answer to point No.2, proceed to pass
following order.
O R D E R
1. Notice of Motion No.1696 of 2020 is allowed subject
to the payment of costs of Rs. 5,000/– by Plaintiff No.2
to Defendant Nos.2 and 4 equally.
2. On payment of costs, the delay caused in taking out
Notice of Motion is condoned and the order dated
-- 3 of 5 --
4
19.10.2018 of dismissal of Suit No. 2753 of 2011 is set
aside and suit is restored to its original stage.
3. Notice of Motion No.1696 of 2020 is disposed of
accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 13/10/2022 Gr. Bombay.
Dictated on : 13/10/2022
Transcribed on : 13/10/2022
Signed on : 13/10/2022
-- 4 of 5 --
5
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/10/2022 At 11.48 A.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
13/10/2022
Judgment/Order signed by P.O. on 13/10/2022
Judgment/Order uploaded on 15/10/2022
-- 5 of 5 --