Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2002 OF 2019
IN
S.C. SUIT NO. 1423 OF 2015
Ramprasad Ramdhani Yadav ]..Plaintiff.
V/s.
Ramashray Ramdhani Yadav ]
and others. ]..Defendants.
Advocate Mr. A.R. Pandey for the plaintiff.
Advocate Mrs. Chandramore for defendant No.4/BMC.
Advocate Mr. Trivedi for defendant No.5/SRA
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 2nd MARCH, 2022
ORDER
The Notice of Motion is taken out by Defendant No.1 for
the relief of restoration of Notice of Motion No.2063 of 2016 for
condonation of delay caused in filing written statement. The said Notice
of Motion came to be dismissed in default on 04/02/2019 as Defendant
No. 1 failed to appear before the Court and no one present on his behalf
to argue the said Notice of Motion.
2. The Defendant No.1 has stated that he was depending
upon his Advocate for conducting this suit and the other proceedings
therein. His Advocate had assured him to look after the matter. It is
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further stated that on 04/02/2019 he was in his native place and not
keeping well. He was recuperating from the illness. He had
communicated the same to his Advocate who had assured him of taking
care of his matter.
3. The Defendant No. 1 has further stated that his Advocate
could not remain present before the Court on 04/02/2019 as he was
held up in the Small Cause Court. By the time his Advocate comes to
this Court, the Notice of Motion was dismissed by the Court. When
Defendant No. 1 returned to Mumbai, his Advocate informed him about
the dismissal of the Notice of Motion and to take out fresh Notice of
Motion for restoration of the same.
4. Defendant No. 1 has further stated that his absence in the
Court on 04/02/2019 was not intentional. He has got good case on
merits and if he is not permitted to file written statement on record, he
will suffer irreparable loss. There is no delay caused in taking out this
Notice of Motion. Hence, the Defendant No. 1 has prayed for allowing
the Notice of Motion.
5. Plaintiff has filed reply to the Notice of Motion and has
stated that it is illegal and bad in law and filed with an intention to
protract the trial. The Defendant No. 1 has not shown any sufficient
cause for setting aside the order of dismissal of the earlier Notice of
Motion. The Defendant No. 1 deliberately avoided to proceed with the
Notice of Motion No. 2063 of 2016. Defendant No. 1 was not diligent
about his proceedings and he cannot blame his Advocate. There is no
medical certificate filed by the Defendant No. 1 showing that he was not
keeping well on that day. The reason that Advocate for the Defendant
No. 1 was busy in Small Cause Court cannot be a reason for restoration
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of the Notice of Motion. For all the above reasons, Plaintiff has prayed
for the dismissal of the Notice of Motion.
6. I have heard both learned advocates. Nobody was present
for the defendant Nos. 1 and 2. Hence, their argument on the Notice of
Motion cannot be heard.
7. The earlier kept Notice of Motion No. 2063 of 2016 was
taken out by the present Defendant No.1 for condonation of delay in
filing his written statement. On 04/02/2019, nobody was present on
his behalf before the Court. Hence, that Motion came to be dismissed
for default.
8. It is the case of Defendant No.1 that he was not keeping
well and was at his native place on that day. Defendant No. 1 has not
produced any medical certificate or other document to show that his
health was not well on that day which prevented him from appearing
before the Court. He could have easily produced the same.
9. Defendant No.1 has further stated that he had informed his
Advocate about his illness and absence. His Advocate had assured him
to take care of the matter. However, as the Advocate was busy in Small
Cause Court, he could not attend this court within time. By the time he
attended the Court, the Notice of Motion was dismissed by this Court.
The absence of Advocate due to other matters in other Courts cannot be
a reason for adjournment or condonation of delay. However, at the
same time, it is necessary to keep in mind that the interest of any party
cannot be allowed to suffer due to the fault of the Advocate. In this
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matter, it was the responsibility of Advocate for Defendant No.1 to
appear before the Court within time and represent his client. Advocate
for Defendant No. 1 failed to perform his duty. As Defendant No.1 was
not present in person, the Court proceeded to dismiss the Notice of
Motion.
10. It is necessary to adjudicate the matter fully and finally on
merits by giving opportunity to both the parties to present their sides.
Delay is a technical reason and cannot be allowed to override the rights
of the parties. In this matter, the Defendant No. 1 has taken out the
Notice of Motion for restoration of his earlier Notice of Motion within
time. Therefore, he was diligent about this matter. Whether the delay
caused in filing written statement by Defendant No. 1 is liable to be
condoned or not is a separate question which can be decided at the time
of deciding Notice of Motion No. 2063 of 2016. At present, I feel it
proper to allow the present Notice of Motion. The delay caused in the
proceedings due to the conduct of Defendant No. 1 can be compensated
in the terms of cost. Therefore, I proceed to pass following order.
O R D E R
1. The Notice of Motion No.2002 of 2019 is allowed
subject to payment of cost Rs. 2,500/– to be paid by
Defendant No. 1 to the plaintiff within 30 days from the
date of this order.
2. On payment of cost as stated above by the Defendant
No. 1, the Notice of Motion No. 2063 of 2016 shall be
restored to its original stage.
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3. Defendant No. 1 to bear his own costs of this Notice
of Motion.
4. The Notice of Motion 2002 of 2019 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 02.03.2022 Gr.Mumbai.
Dictated on: 02.03.2022
Typed on : 02.03.2022
Signed on : 04.03.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF CLERK
19.03.2022 AT 12.40 P.M. MR.PRAVIN V. KHARCHE
Name of the Judge (with Court Room
No.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of ProNo.uncement of
Judgment/Order
02.03.2022
Judgment/Order signed by P.O. on 04.03.2022
Judgment/Order uploaded on 19.03.2022
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