Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1851 OF 2019
IN
S.C. SUIT NO.6304 OF 2006
BABA RAMPRATAP YADAV ] … Plaintiff
V/s.
Z. M ENTERPRISES BUILDERS & DEVELOPERS ]
& SHELTERS & Ors. ] ... Defendants
Appearances :-
Ld. Adv. Ms. Ashwini Patil for plaintiff.
Ld. Adv. Mr. Avnendra Kumar for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G .
BORLEPWAR
(C.R.No.20)
DATED : 23rd October, 2020
ORAL ORDER
1. Plaintiff filed this Notice of Motion for setting aside order
dated 17.07.2018 keeping the suit for dismissal order.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and reply of defendant No.2. Heard plaintiff’s advocate and
Advocate of defendant No.2.
MHCC01-005229-2019
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3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether order dated 17.7.2018 keeping
the suit for dismissal order can be set
aside ?
In the affirmative.
2 What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the plaintiff that issues are
framed on 16.12.2017. Plaintiff could not remain in touch with his
advocate due to business tours and ill health. Therefore, plaintiff
advocate had no instructions to proceed with the matter. On
17.07.2018 the matter kept for dismissal order. On 15.09.2018
Advocte U.V. Singh tendered one application for removing the caption
of dismissal suit, however, the same was rejected. Thereafter, Advocate
Savina Bangera, Junior Assisting Advocate to Shri Anil R. Mishra filed
Chamber Summons alongwith affidavit. Plaintiff came to know that the
said Chamber Summons is also filed by mistake. Therefore, the Notice
of Motion be allowed.
5. In brief, it is contention of defendant No.2 that the plantiff
is not businessman and he was not suffering from ill health. All other
adverse contentions are denied. Perused record. Suit was kept for
evidence on 04.05.2018. Thereafter matter adjourned on 17.07.2018.
Perused Roznama dated 17.07.2018. None was present for plaintiff,
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therefore suit kept for order of dismissal on 15.09.2018. Perused
Roznama dated 15.09.2018. On 15.09.2018 none present for plaintiff.
Therefore it was directed to keep the matter for dismissal order. Later
on at 11.55 a.m. Advocate U.V. Singh was present for plaintiff. He filed
application for changing caption of dismissal of suit. The said
application is rejected observing that the said application is not in
proper proforma of Bombay City Civil rules. Later on, on the same day
at 12.30 p.m. Advocate Ms. Saveena Mangera appeared for plaintiff and
filed draft Chamber Summons to change the caption of dismissal of the
suit. The said Chamber Summons number is Chamber Summons
No.2063 of 2018. It appears that on 20.04.2019 plaintiff not pressed
the said Chamber Summons. Therefore, Chamber Summons No.2063
of 2018 is disposed off as not pressed on 20.04.2019.
6. Perused Order 9 Rule 3 of the CPC. As per the said Rule
where neither party appears when the suit is called on for hearing, the
Court may make an order that the suit be dismissed.
7. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his non-appearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
8. Perused Order 9 Rule 8 of the Code of Civil Procedure. As
per the said rule, where the defendant appears and the plaintiff does
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not appear when the suit is called on for hearing, the Court shall make
an order that the suit be dismissed, unless the defendant admits the
claim, or part thereof, in which case the Court shall pass a decree
against the defendant upon such admission, and, where part only of the
claim has been admitted, shall dismiss the suit so far as it relates to the
remainder.
9. Considering the facts & circumstances and nature of the
suit, I am of the opinion that absence of plaintiff on 17.07.2018 before
Court was not intentional and therefore one chance can be given to the
plaintiff to prove his case. Therefore, the order dated 17.07.2018
keeping the suit for dismissal order can be set aside and plaintiff can be
permitted to lead evidence. Hence, I record my findings to point Nos.1
in the affirmative and point No.2 the Notice of Motion is allowed as per
final order. Hence following order:
ORDER
Notice of Motion No. 1851 of 2019 in Suit 6304 of 2006 is hereby
allowed as under-
1. Order dated 17-07-2018 keeping the suit for dismissal order is
hereby set aside.
2. plaintiff is permitted to lead evidence.
3. Due to Covid-19 pandemic, it is not proper to give short date for
evidence of plaintiff.
4. Costs in cause.
5. Matter be posted for evidence of plaintiff.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 23/10/2020 City Civil Court, Gr. MUMBAI
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Dictated on : 23/10/2020.
Transcribed on : 06/11/2020.
checked on : 07/11/2020
Signed on : 07/11/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.11.2020 at 02.07 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 23.10.2020
Judgment/order signed by P.O. on 07.11.2020
Judgment/order uploaded on 07.11.2020
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