Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1872/19 (Suit 725/18)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1872/2019
(CNR No.MHCC01-005252-2019)
IN
S.C. SUIT NO.725/2018
Mr. Pyara Singh s/o. Jaswant Singh Bassan ..Plaintif
V/s.
1. Mrs. Jaswinder Kaur Bharaj
2. Mrs. Kamaljeet Kaur Sandhu
3. Mrs. Param Pankaj Pandey ..Defendants
Appearance:-
Adv. Mr. S.K. Dubey for plaintif.
Adv. Fauzan h/f R.B. Mokashi for defendant no. 1 to 3.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 4.2.2020.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintif
for setting aside order of withdrawal of suit dated 16.11.2018
and for restoration of notice of motion, which was pending
before the court, by condoning delay, if any. The Motion is
supported by an afdavit of plaintif Mr. Pyara Singh Bassan.
The defendants have strongly opposed the Motion by
submitting afdavit in reply by Mrs.Jaswinder Kaur Bharaj. I
have perused the same.
2. I have heard Ld. Adv. Mr. S.K. Dubey for the plaintif
and Ld. Adv. Mr.Fauzan on behalf of the defendants.
3. Ld. Counsel for the plaintif referred to and relied
upon afdavit in support of the Motion and argued that, he has
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2 N/M 1872/19 (Suit 725/18)
also fled rejoinder to the reply fled by defendants and would
like to refer the same in the course of argument. He submitted
that, present suit has been fled for declaration that
agreement dated 2.4.2012, in respect of he suit premises i.e.
Gala No. 9B, Shriguppi Co-op. Industrial Estate Ltd., Saki Vihar
Road, Mumbai 400 072, is legal, vaid and binding on the
defendants and for further releifs, including alternative relief
of refund of consideration amount paid by the plaintif to the
defendants, and consequential relief of injunction against the
defendants.
4. Ld. Counsel for the plaintif further submitted that,
during pedency of the suit, after fling of WS, the defendant
had negotiated with the plaintif regarding settlement of the
dispute and the husband of defendant no.1, Paramjeet Singh
had asked the plaintif to withdraw the Suit frst so that the
parties can settle their matter amicably out of the court.
Therefore, the plaintif had withdrawn the suit on
16.11.2018,in the above background of the facts and
circumstances of the settlement between the parties.
5. Ld Counsel for the plaintif further sbmitted that,
after withdrawal of the suit by the plaintif, the defendants had
changed their stand and with dishonest intention exprssed
their dissatisfaction about the proposed settlement and as a
matter of fact, failed to settle the dispute as per terms agreed
between the parties. Ld. Counsel for the plaintif submitted
that, due to undue infuence by the defendants and due to his
old age and simple tone nature, the plaintif had relied upon
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3 N/M 1872/19 (Suit 725/18)
oral assurance of the defendants and has withdran the suit.
But, the defendants have failed to abide by the promises
given by them to the plaintif.
6. Under the above circumstances, the withdrawal of
the suit by the plaintif simplicitor without seeking leave of the
court to fle suit is vitiated by deception and deserves to be
set aside by the court and to allow the present Motion, and
restoration of the suit for decision on merits.
7. Per contra, Ld. Counsel for the defendants has
strongly opposed the Motion and denied all the adverse
allegations and grounds stated in the Motion and submitted
that, the Motion taken out by the plaintif is itself not
maintainable in law as after the suit is disposed of by this
court, it has no jurisdiction to entertain the Motion as it has
become functus ofcio. It is further submitted that, the Motion
is barred by limitation of more than 3 and half months and
same cannot be entertained. It is further argued that the
Motion taken out by the plaintif cannot be allowed by this
court as it sufers from delay and it is barred by the principle
of Estoppel. Ld. Counsel for the defendants submitted that,
the defendants deny that Paramjeet Singh and Yogendra
Tiwari were responsible to infunce the plaintif to withdraw
the Suit on 16.11.2018 and under the above circumstances,
the Motion is liable to be dismissed.
8. After considering the grounds stated in the Motion
and reply afdavit submitted by the defendants and after
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4 N/M 1872/19 (Suit 725/18)
taking into consideration oral submissions made by Ld
Counsels for both sides, I fnd that, the supporting afdavit
fled by the plaintif only states that, the plaintif had
withdrawn the suit under infuence of the defendants and in
view of oral assurances given by them to the plaintif
regarding settlement proposal, but no details of such facts are
stated by the plaintif which were orally argued by Ld. Counsel
for the plaintif at the time of hearing of the Motion.
9. It is true that, there is substance in the submission
made by Ld. Counsel for the plaintif that, the plaintif has paid
substantial amount of court fees at the time of approaching
this court and suit was withdrawn by the plaintif in view of
assurance given by the defendants to settle the matter.
However, it is necessary for the plaintif to bring on record all
the facts and circumstances to show that he was misled by
the acts of the defendants and was compelled to withdraw the
suit against his desire, or that the defendants have deceived
him by not keeping their words and their oral assurance
regarding settlement and therefore, he had withdrawn the
suit.
10. Under the above background, I fnd that, the
objections taken by the defendants are only of technical
nature and I am of the opinion that abandonment of the suit
by the plaintif cannot be said to be voluntary act of the
plaintif and therefore, needs intervention of the court.
However, the notice of motion, as framed and fled by the
plaintif, lacks basic facts on which the plaintif wants to rely
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5 N/M 1872/19 (Suit 725/18)
for recalling the order of withdrawal of the Suit and for
restoration of the same. Hence, I proceed to pass following
order :-
ORDER
1. Notice of Motion No.1872/2019 is hereby
disposed of as not properly framed and fled,
with a liberty to fle fresh notice of motion
narrating all the relevant facts, which the
plaintif wants to rely.
Notice of motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 4.2.2020 Gr. Bombay (C.R. 03)
Dictated on : 4.2.2020
Transcribed on : 5.2.2020
Signed by HHJ on : 7.2.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/
ORDER.
UPLOADED ON : 7.2.2020
TIME: 3.32 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 4.2.2020
Judgment/ order signed by P.O on 7.2.2020
Judgment/ order uploaded on 7.2.2020
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