Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2085/19 (Suit 2925/15)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.2085/2019
(CNR No.MHCC01-005789-2019)
IN
S.C. SUIT NO.2925/2015
Shivshakti Cooperative Housing Soc.Ltd. ..Plaintiff.
V/s.
M/s Hira Investments Pvt. Ltd. And Ors. ..Defendants
Appearance:
Adv. Ms. Nilima Sarvgod for plaintiff.
Adv. Ms. Esha for defendant no.2.
Adv. Ms.Aarti Nimbalkar for defendants no. 4 and 5.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 18.12.2019.
ORAL ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
of Mr Virendra Kapani, authorized person on behalf of the plaintiff
Society.
2. Heard Ld Counsels for the plaintiff and defendants.
3. Plaintiff has taken out this N/M for setting aside order
passed in Roznama dated 8.4.2019, dismissing the N/M No.198/16 for
want of prosecution and to restore the N/M 198/16.
4. Ld. Counsel for the plaintiff submitted that, present suit has
been filed for declaration that exparte decree in Suit No.21/09 dated
7.10.2010 has been obtained by fraud. It is null and void and not
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binding on the plaintiff. Defendants have appeared in the suit and
resisted plaintiff's claim by submitting their WS.
5. In the meanwhile, the plaintiff had taken out the N/M
198/16 and prayed for interim relief of temporary injunction. On
29.1.2019, the matter was listed for hearing on N/M 198/16 and was
adjourned to 8.4.2019. It is submitted that, on 29.1.2019, Advocate for
the plaintiff had appeared but had wrongly recorded next date as
9.4.2019 in his diary and it was conveyed to the plaintiff. Copy of
Roznama dated 8.4.2019 is filed on record with the Motion vide Ex.A.
On 9.4.2019, Advocate for the plaintiff was present before the court,
but the matter was not on board. When the advocate verified the status
and checked the record, he found that there was an error and mistake
on his part while recording next date. Instead of 8.4.2019 he had
recorded the date as 9.4.2019. Therefore he could not remain present in
the court on 8.4.2019. Ld. Counsel for the plaintiff submitted that, the
above mistake on the part of advocate of the plaintiff is bonafide one
and not deliberate or intentional. The plaintiff cannot be made to suffer
due to the mistake on the part of his advocate. Hence, the Motion
deserves to be allowed, subject to conditions.
6. Defendants have failed to submit their reply to the Motion
inspite of giving chances on 16.7.2019, 26.8.2019 and 14.10.2019. Ld
Counsels for the defendants have opposed the Motion and submitted
that, appropriate orders may be passed.
7. Considering the grounds stated in the Motion and oral
submissions made by Ld. Counsel for the plaintiff that, due to bonafide
mistake and error on his part he had wrongly noted next date of the
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case on 29.1.2019. Instead of noting next date as 8.4.2019, he had
noted 9.4.2019 and therefore, he could not attend the case on 8.4.2019.
The explanation given by Ld Counsel for the plaintiff appears to be
probable and bonafide. There is no reason to disbelieve the same.
However, it is equally true that, because of the lapse on the part of
Counsel for the plaintiff, there has been delay in the proceedings since
April, 2019. Therefore, it would be just and proper to allow the Motion,
subject to some reasonable costs. Hence, I proceed to pass following
order:
ORDER
Notice of Motion No.2085/2019 is hereby allowed and
made absolute in following terms :
1. Order passed by this Court in the Roznama dated 8.4.2019,
dismissing N/M No.198/16 for want of prosecution, shall
stand set aside, subject to plaintiff depositing costs of
Rs.2,000/ in the Bar Library within four weeks from
today.
2. If the above order and directions are complied with by the
plaintiff within time, N/M No.198/16 shall stand restored
to the file along with interim orders, if any passed by this
Court, for hearing and decision according to law.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 18.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 18.12.2019
Typed on : 18.12.2019
Signed by HHJ on : 19.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 19.12.2019
TIME: 1.35 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 18.12.19
Judgment/ order signed by P.O on 19.12.19
Judgment/ order uploaded on 19.12.19
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