Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1867 OF 2019
IN
S.C. SUIT NO. 4951 OF 2008
Mr. Sunil Kambli ] ...Plaintiff
Versus
M/s. Genom Biotech Pvt. Ltd. ] ...Defendant.
Appearances :
Ms. Devika Purav, Ld. Adv. for plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 21st December, 2019
ORAL ORDER
1. Plaintiff No.1a Shobha Sunil Kambli filed this Notice of
Motion for setting aside order dated 16.3.2019 placing the matter of
dismissal of the order.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and affidavit of service. Heard plaintiff’s advocate.
3. In brief, it is contentions of the plaintiff No.1a Shobha
Sunil Kambli that she is widow of the original plaintiff Mr. Sunil
Kambli. Mr. Sunil died on 12.08.2010 leaving behind her and her
minor children defendants Nos.1b and 1c. He was bread winner for
the family. Due to his death she and her children suffered irreparable
MHCC01-005245-2019
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loss. Her husband had invested heavily in the works carried out for
defendants. She is housewife. Because of her minor children and
responsibility to run family, it was sometimes difficult to attend the
Court. On 16.3.2019 she attended the Court but before her attendance
the suit was dismissed for default.
4. She had earlier taken steps by moving application before
the Hon’ble Principal Judge, for clubbing this suit with another matter.
Therefore, if the said order is not set aside then she would suffer
irreparable loss.
5. Perused Roznama dated 29.1.2019. As per said Roznama
the suit was kept for dismissal order on 16.03.2019 for want of
prosecution. On 16.03.2019 advocate of plaintiff was present and he
had filed application for changing the caption of dismissal of the order.
It is observed in the order passed on the said application that reasons
shown in the said application is not just and proper. Plaintiff to take
necessary steps for changing of caption as the application for change of
caption is not maintainable in view of Bombay City Civil Court Rule.
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
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Court that there was sufficient cause or for his nonappearance, 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 Article 122 of the Limitation Act, 1963. As per the
said provision period of limitation is 30 days to file application from the
date of order of dismissal to restore a suit dismissed for default of
appearance or for want of prosecution.
9. The suit is filed in the year 2008. Considering the nature of
the suit and the grounds mentioned in the Notice of Motion for absence
of plaintiff before the Court, I am of the opinion that the Order for
placing matter for dismissal can be set aside by granting an opportunity
to the plaintiff to lead evidence. Hence I proceed to pass following
order:
ORDER
Notice of Motion 1867 of 2019 is hereby made absolute as under:
1. The caption of dismissal of the suit is changed and matter fixed
for evidence.
2. The matter is posted for evidence on next date.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 21/12/2019 City Civil Court, Gr. MUMBAI
Dictated on : 21/12/2019.
Transcribed on : 30/12/2019.
Signed on : 30/12/2019.
( 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”
01.01.2020 at 12.46 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 21.12.2019
Judgment/order signed by P.O. on 30.12.2019
Judgment/order uploaded on 01.01.2020
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