Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1926 OF 2019
IN
S.C. SUIT NO.1153 OF 2015
Anand Sadashivrao Deshmukh, ] ...Applicant
IN THE MATTER BETWEEN
Anand Sadashivrao Deshmukh, ] ...Plaintiff
Versus
1. Department of Human Resources, ]
& Ors. ] ...Defendants.
Appearances :
Mr. Nikhil, Ld. Adv. for plaintiff.
Ms. Vaishali Aagawane, Ld. Adv. for defendant Nos.1, 2 and 5.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 21st December, 2019
ORAL ORDER
1. Plaintiff has taken out this Notice of Motion for setting
aside dismissal of suit dated 18.03.2019.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and reply of defendant. Heard both the sides.
MHCC01-005338-2019
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3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether dismissal of the suit dated
18.03.2019 can be set aside?
In the affirmative.
2. Whether suit can be restored to its
original stage?
In the affirmative.
3. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contentions of the plaintiff that, suit is filed for
challenging his illegal suspension order dated 11.03.2013 and his illegal
and arbitrary termination order dated 29.06.2013. The suit was posted
on 18.3.2019. Plaintiff and his advocate both were absent therefore
suit is dismissed for want of prosecution.
5. Earlier Advocate of the plaintiff has given NOC and he
engaged new Advocate who filed Vakalatnama on 18.8.2018. The
present Advocate was from Indore City therefore sometime it was
difficult him to attend the Court. Therefore he discharged his earlier
Advocate and engaged present advocate. On 18.3.2019 his Advocate
was held up in the Hon'ble High Court. Junior Advocate was also not
present before the Court. Therefore the suit dismissed on 18.3.2019.
His Advocate came to this Court after attending the matter before the
Hon'ble High Court but till that the suit was dismissed. The absence of
Advocate and plaintiff was not intentional and deliberate. Therefore,
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the Notice of Motion be allowed as prayed for.
6. Defendant filed reply. In brief, it is contention of the
defendant that all the adverse contentions are denied. Notice of Motion
is not maintainable. Sufficient opportunity was given to the plaintiff to
lead evidence. In spite of it plaintiff did not lead evidence therefore,
dismissal order is proper. Hence, Notice of Motion be dismissed.
7. Perused Roznama dated 18.3.2019 on that date both the
parties and their counsel were absent. It is observed in the order that
the suit was kept for dismissal order since 26.6.2018. Therefore suit
dismissed for want of prosecution on 18.3.2019. This Notice of Motion
is filed on 16.4.2019. It is filed within 30 days from the date of
dismissal of the suit.
8. 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.
9. 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.
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10. 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.
11. Perused Section 5 of the Limitation Act. As per the said
provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
may be admitted after the prescribed period, if the appellant or the
applicant satisfies the Court that he has sufficient cause for not
preferring the appeal or making the application within such period.
12. If for a moment it is presumed that Advocate for plaintiff
was busy in other matter in that situation plaintiff should have
remained present before the Court. Considering the reasons mentioned
in the Notice of Motion and nature of the suit, I am of the opinion that
the said order of the dismissal can be set aside by imposing some costs.
Hence I record my findings to point Nos.1 and 2 in the affirmative and
point No.3 the Notice of Motion is made absolute as per final order.
Hence following order:
ORDER
Notice of Motion No.1926 of 2019 is hereby allowed as under:
1. Order of dismissal of suit dated 18.03.2019 is hereby set aside
subject to cost of Rs.3000/ (Rs.Three Thousand only).
2. The suit be restored at its original stage, after compliance of the
order of the costs.
3. Time granted till 20.1.2020 to deposit the cost in the Court or it
be given to the defendant.
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4. Both the parties are directed to remain present before the Court
on 03.02.2020 at 11.00 a.m.
( 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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