Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1922 OF 2019
IN
S.C. SUIT NO.492 OF 2014
Union Bank of India Bank ] ...Plaintiff
Versus
1. Mr. Nitin Satardekar & Anr. ] ...Defendants.
Appearances :
Ms. Janhvi Paradkar, Ld. Adv. for plaintiff.
Mr. A.S. Kapse, Ld. Adv. for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 23rd January, 2020
ORAL ORDER
1. Plaintiff has taken out this Notice of Motion for setting
aside caption of dismissal of the suit.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion, reply of defendant No.1. Heard both sides.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
MHCC01-005335-2019
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2 NM 1922/19 in
SC Suit 492/14
Sr. No. POINTS FINDINGS
1. Whether caption of dismissal of the suit
can be changed?
In the affirmative.
2. What Order ? Notice of motion is
made absolute.
REASONS
As to point No.1 & 2.
4. In brief, it is contentions of the plaintiff that, issues are
framed on 09.08.2018. Plaintiff and advocate of plaintiff were not
present on 10.10.2018. Matter adjourned on 21.10.2019 for filing
evidence of plaintiff. On 21.10.2019 Advocate for the plaintiff was
present but the evidence was not ready. On that day Advocate for the
plaintiff sought time to file evidence. It is wrongly mentioned in the
Roznama dated 21.01.2019 that more than three chances are granted.
Thereafter, matter adjourned from 21.01.2019 to 16.03.2019. On
16.03.2019 Advocate of plaintiff filed adjournment application. It is
rejected on the same day, observing that the application has no force. It
is contention of defendant No.1 that plaintiff has not come with clean
hands. There is no substance in the suit, therefore Notice of Motion be
dismissed.
5. Perused Roznama. Suit is filed in the year 2014. Issues are
framed on 09.8.2018. After 09.8.2018 matter adjourned on
10.10.2018. Thereafter matter adjourned from 10.10.2018 to
21.1.2019. On 21.01.2019, it is directed to keep the matter for
dismissal order.
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3 NM 1922/19 in
SC Suit 492/14
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 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. Considering the nature of the suit and reasons mentioned
in the Notice of Motion for non filing evidence of the plaintiff, I am of
the opinion that the caption of dismissal of the suit can be changed and
plaintiff can be permitted to lead evidence. Hence following order:
ORDER
Notice of Motion No. 1922/19 is hereby made absolute as under.
1. Caption of dismissal of the suit is changed.
2. Suit be posted for filing evidence of plaintiff.
3. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 23/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 23/01/2020.
Transcribed on : 24/01/2020.
Signed on : 27/01/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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4 NM 1922/19 in
SC Suit 492/14
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.01.2020 at 03.25 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 23.01.2020
Judgment/order signed by P.O. on 27.01.2020
Judgment/order uploaded on 28.01.2020
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