Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1927 OF 2019
IN
SUIT NO. 5354 OF 2007
Rakesh B. Bajaj ...Plaintiff
Versus
Sudesh Khaneja & Anr. ..Defendants
Appearance:
Advocate Mr. Girish Paryani for the Plaintiff.
Advocate Mr. Devang Parmar for the Defendant.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 2nd September, 2021
ORDER
This notice of motion has been taken out by the plaintiff to
set aside the order of dismissal of suit due to noncompliance of the
order of supplying the amended copies of the plaintiff to defendant
Nos.1 and 2.
2. Vide order of chamber summons No.1447/2015 dated
13.07.2018, the plaintiff was permitted to add that legal heirs and
representative of the plaintiff in the plaint and serve a copy of the
amended plaint on the defendant Nos.1 and 2. On 18.08.2018, an
amendment in the plaint was carried out. Thereafter, on 16.03.2019
holding that the copies of the amended plaint are not supplied to other
side, the suit came to be dismissed.
3. According to the plaintiff, after carrying out the
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amendment in the plaint, on 03.09.2018 the copy of the plaint was
supplied to defendant No.1. Only the compliance report was remained
to be informed to the Court. Due to that, suit came to be dismissed on
16.03.2019. The plaintiff claimed that he was not negligent in
prosecuting the suit. He had complied with the order of chamber of
summons No.1447/2015 dated 13.07.2018, in time. He asked to
restore the suit to its original state.
4. The N/M has objected by the defendant No.1, vide reply
dated 06.03.2020. According to defendant No.1, though copy of
amended plaint was given, it was not a complete copy of plaint. The
defendant No.1 asked to dismiss the notice of motion.
5. Heard. Perused the N/M, reply and record. On its basis
following points rise for the determination and the findings to each of
them for the reasons recorded as below.
Sr.No. POINTS FINDINGS
1. Whether there was sufficient cause,
which prevented the plaintiff to appear
on 16.03.2019, when the suit was called
on for making compliance of the
directions in chamber summons
No.1447/2015 ?
Yes.
2. Whether the plaintiff found negligent in
prosecuting the suit ? Yes.
3. What order ? N/M is allowed.
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Reasons:
As to Point Nos. 1 & 2 :
6. The defendant has made available the roznama of the suit
of the relevant period dated 13.07.2018 to 16.03.2019. From which, it
is appearing that, the amendment in the plaint in the form of bringing
the legal heirs and representatives of the deceased plaintiff was
permitted on 13.07.2018, vide order of chamber summons
No.1447/2015. The said order was partly complied with on 18.08.2018
by carrying out the necessary amendment in the plaint. From the say of
defendant No.1, it is appearing that on 03.09.2018, its Advocate had
received a copy of amended plaint from the plaintiff. Thus, as on
16.03.2019, indeed there was no compliance remained to be made by
the plaintiff of the order of chamber summons No.1447/2015 dated
13.07.2018. But the fact that, it was not communicated to the Court on
the given dates i.e. 22.10.2018, 18.01.2019, 12.02.2019 and
16.03.2019. There was no error on the part of court in dismissing the
suit for default/noncompliance of the order of chamber summons
No.1447/155 dated 13.07.2018. The Advocate of the plaintiff in para 2
of the supporting affidavit, has given an explanation which prevented
him from appearing in the Court on the given dates and to inform the
compliance of the order of the chamber summons No.1447/15. Since,
the excuse shown by the Advocate of the plaintiff, in absence of
otherwise is satisfactory, it needs to be accepted. As stated above, in
absence of authorized material, the said excuse of the Advocate of the
plaintiff is required to be considered. But at the same time, it requires
to state that the plaintiff also did not take proper care in the relevant
time. He only entrusted the matter to the Advocate and did not take
proper follow up that whether indeed the compliance of the order of
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chamber summons No.1447/2015 has been made and reported to the
court in time or not. Though it appears to be a mistake on the part of
the Advocate, the plaintiff is also equally responsible for the dismissal of
his suit. But, since it was not in the interest of plaintiff to not make the
compliance of the order of the chamber summons and hence, he was
not going to be benefited because of noncompliance of the order, it
appears just to extend an opportunity to him by restoring the suit to its
original state. But the defendants who suffered due to inaction of the
part of the plaintiff, need to be compensated which in given facts and
circumstances should be Rs.3000/. Lastly answering point Nos.1 & 2
accordingly, following order is passed.
ORDER
1. NM Nos. 1927/2019 is allowed subject to payment of costs of
Rs.3,000/ by plaintiff to Defendant Nos. 1 and 2, i.e. Rs. 1,500/, each
within 7 days from today.
2. The order to dismiss the suit dated 16/03/2019 is set aside.
3. On deposit of costs, suit No. 5354/2007 be restored to its original
state.
4. Both the parties to appear in the suit No. 5354/2007 on 05/10/2021
at 11.00 a.m., without expecting any fresh service of notice on them.
5. Accordingly, the notice of motion is disposed off.
Dated : 02.09.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 02.09.2021
Transcribed on : 04.09.2021
Signed on : 09.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 09.09.2019 12.45 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
02.09.2021
JUDGMENT /ORDER signed by P.O. on 09.09.2021
JUDGMENT /ORDER uploaded on 09.09.2021
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