Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.1831-2018 in
Suit No.6816-1997
MHCC010059422018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1831 OF 2018
IN
SHORT CAUSE SUIT NO.6816 OF 1997
1. Arun Vasant Patil ]
2. Vasanti Vasant Patil ]
Both residing at Shanti Sadan, ]
Mukund Patil Road, Andheri(West) ]
Bombay-400 058. ]
3. Sudha K. Raote ]
Residing at Raote Building, ]
Banam Lane, Girgaon, ]
Bombay- 400 004. ]
4. Satish Shriram Patil ]
Residing at Vrundavan Co-Op. Hsg. ]
Soc., Building No.7, Thane(West). ]
5. Jagdish Shriram Patil ]
Residing at Parashuram Building, ]
Jay Prakash Road, Andheri(West), ]
Bombay- 400 058. ]
6. Prakash Kesharinath Patil ]
7. Smita Kesharinath Patil ]
8. Rashmi Kesharinath Patil ]
All Residing at Manav Kalyan Society ]
A/1/6, 1st Floor, Bangur Nagar, ]
M. G. Road, Goregaon(West), ]
Bombay- 400 090. ]
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9. Vijaya Mahadev Patil ]
Residing at Smruti, ]
Dr. Vasant Raj Road, Shivaji Park, ]
Dadar, Bombay-400 028. ]
10. Rajeev Madhav Patil ]
Residing at Madhav Co-Op. Hsg. ]
Soc. Mogal Lane, Mahim, ]
Bombay- 400 016. ]
11. Kastur G. Patil ]
Residing at Windsor House, ]
Maharshi Karve Road, Churchagate, ]
Bombay-400 001. ]
12. Arvind Jaywamt Patil ]
13. Suren Jaywant Patil ]
Both residing at Vasant Niwas, ]
Jay Prakash Road, ]
Andheri (West), Bombay-400 058. ]
14. Smt. Sandhya Sandesh Bhatte ]
Residing at Sandesh, Bawood Baug, ]
Andheri (West), Bombay 400 058. ]
15.Chandrakant Balkrishna Patil ]
16. Milind Chandrakant Patil ]
Both residing at Vasanti Niwas, ]
Jay Prakash Road, Andheri (West), ]
Bombay-400 058. ]
17. Sudhir Prabhakar Patil ]
Residing at Shanti Niwas, 1st Floor, ]
Jai Prakash Road, Andheri (West), ]
Bombay- 400 058. ]
18.Kishor Prabhakar Patil ]
Residing at Patel Palace, ]
Jivan Vikas Kendra Marg, Sahar Road, ]
Andheri (West), Bombay- 400 069. ]
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19. Kusum Prabhakar Patil ]
Residing at Sai Prabha, Shantawadi, ]
J. P. Road, Andheri (West), ]
Bombay-400 058. ]
20. Nutun Dilipo Chalkar ]
Residing at Man Mandir, Block No.201, ]
Dahisar (West), Bombay- 400 098. ]
21. Shridhar Raghyanth Patil ]
22. Vinay Shridhar Patil ]
23. Abhay Shridhar Patil ]
All residing at Sarkar Co-Op. Hsg. Soc., ]
Veera Desai Road, Andheri (West), ]
Bombay- 400 058. ]
24. Kundabala Diwakar Parelkar ]
Residing at Kshatriya Building, ]
Anant Patil Road, Gokhale Road, ]
Dadar, Bombay- 400 028. ]
25.Shakuntala Raghunath Patil ]
Residing at Shanti Niwas, 1st Floor, ]
Jay Prakash Road, Andheri (West), ]
Bombay-400 058. ]
26. Pandharinath Yeshwant Patil ]
Residing at Shahi Niwas, 3rd Floor, ]
Jay Prakash Road, Andheri (West), ]
Bombay-400 058. ]
27. Smt. Prabhavati Rajaram Nawalkar ]
Residing at Sai Darshan Co-op. Hsg. Soc., ]
Malpa,Dongri, Mahakali Road, ]
Andheri (,East), Bombay-400 093. ]
28. Dinesh K. Shah ]
Of Bombay, Indian Inhabitant carrying on ]
Business in the name and style of Jyoti ]
Construction Company, as the Sole ]
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Suit No.6816-1997
Proprietor thereof, having its ]
Building, Veer Nariman Road, Fort, ]
Rehman Building, Veer Nariman Road, ]
Fort, Bombay- 400 023. ]
29. Manish Vijay Enterprises ]
A Partnership Firm duly registered ]
under the Indian Partnership Act, having ]
its Office at 3 & 4,Crystal Towers, ]
Off. M. V. Road, Andheri (East), ]
Mumbai- 400 069. ]
30. Anuman Developers ]
A duly Constituted Partnership Firm ]
Registered under the Partnership Act, ]
having Office at 3 & 4, Crystal Towers, ]
Off. M. V. Road, Andheri (East), ]
Mumbai-400 069. ]
Versus
1. Ramchandra Bhairo Mane ] … Abated
2. Laxman Bhairo Mane ] ...Dismissed
Both of Bombay, Indian Inhabitants, ]
Residing at R. B. Mane Chawl, ]
Kevni Pada, Brovali (East), ]
Mumbai-400 066. ]
3. Maulana Mohammed Sajidali ] … Abated
Muslim Adult of Bombay, Indian Inhabitant,]
Residing at Ganesh Nagar, Jijamata Chowk, ]
Pump House, Andheri (East), ]
Mumbai.
4. Abdul Subbhan Khan ] ...Dismissed against 4 to 7
Of Bombay, Indian Inhabitant residing at ]
Gulshan Nagar, Jogeshweari (West), ]
Mumbai- 400 102. ]
5. Jahangir Mohammed Shaikh ]
Of Bombay, Indian Inhabitant ]
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residing at Gulshan Nagar, ]
Pump House, Jijamata Chowk, ]
Andheri (East), ]
Mumbai- 400 093. ]
6. Aziz Moosa Memon ]
Of Bombay, Indian Inhabitant ]
Residing at Ganesh Nagar, ]
Pump House, Jijamata Chowk, ]
Andheri (East), ]
Mumbai-400 093. ]
7. Tapovan Developers Pvt. Ltd.]
having their Ofifcer at 12, ]
ParvatiNiwas, 1st Floor, ]
Chandravarkar Lane, ]
Borivali (West), ]
Mumbai- 400 092. ] … Defendants
Appearances :-
Learned advocate Mr. Kamlesh Yadav for plaintiff.
Learned advocate Mr. Sameer Bhalekar for defendant No.7.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 23.12.2024
O R D E R
The plaintiffs have filed present notice of motion for claiming the
relief inter alia;
a) To set aside the order dated 17.03.2018 thereby this Court has
dismissed the suit and also to restore the suit.
b) To grant interim and ad-interim reliefs in terms of prayer
clause (a) above.
c) To provide costs.
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d) To grant such other and further reliefs as the nature and
circumstances of the case may require.
2. In affidavit in support the plaintiffs have contended that,
the suit was originally filed before the Hon’ble High Court but due to
enhancement of pecuniary jurisdiction the suit came to be transferred to
this Court. It is further contended that the plaintiffs have tried to serve
the Writ of Summons upon the defendants through bailiff and
representatives of the plaintiffs. The defendants Nos.3 to 7 have
appeared and they have filed their written statement on record. It is
also contended that by way of substituted service the bailiff affixed copy
of writ of summons on the outer door of defendant No.5 and 6 and also
by paper publication against the defendant Nos.1, 2, 4 to 6 in Free Press
Journal on 04.06.2004. It is also contended that, the Writ of Summons
were also sent through Registered Post and Under Certificate of Posting
(UCP) through the office of Sheriff to the defendant Nos.1, 2, 4 to 6
but due to incomplete address the postal envelopes were returned with
endorsement “returned to the sender due to address not
known/incomplete address”.
3. According to the plaintiffs, the Writ of Summons have been
already served upon the defendants and affidavit of service to that
effect have been filed on record. However, this Court has directed the
plaintiffs to make attend to serve upon the defendant No.2 and
defendant No.4 to 7 by Speed Post AD. It is further contended that the
advocate appearing on behalf of plaintiffs has been unable to point out
the service on the defendant has been already done. Due to which, this
Court has issued fresh Writ of Summons for service through bailiff
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against defendant No.2, 4 to 7 vide order dated 02.02.2018. Time was
extended to serve the summons till 17.03.2018. Despite of the same,
this Court has dismissed the suit on 17.03.2018 due to non-service of
Writ of Summons upon the defendants.
4. The plaintiffs have further contended that, they have
already served the Writ of Summons upon all the defendants, however,
they are ready to comply the direction given by this Court on
03.03.2018. Therefore, they are praying to set aside the order dated
17.03.2018 and to restore the suit.
5. The notice in respect of present motion has been published
in daily newspaper ‘Free Press Journal’ dated 09.05.2022 against the
defendant Nos.1 to 6. Despite of the same, the defendant Nos.1 to 6 did
not turn up.
6. The defendant No.7 by filing this affidavit in reply resisted
the present notice of motion on the ground that, the suit No.214/1997
has already been dismissed by the Hon’ble High Court vide order dated
24.08.2018 for non-prosecution. It is submitted that, when the order of
dismissal was passed representative of plaintiff No.30 was present
before the Hon’ble High Court. The plaintiffs are well aware about the
dismissal of aforesaid suit despite of the same, they have not taken any
steps to set aside the same. It is further submitted that, the plaintiffs
have been diligent in prosecuting the suit and due to which the present
suit has been dismissed. If the order is set aside, serious prejudice will
be caused to this defendant. It is also submitted that there is delay in
filing notice of motion and on this ground also he pressed to dismiss the
motion.
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7. Perused the notice of motion, reply and record. Heard both
the sides.
8. The record indicates that, after the death of defendant No.1
and defendant No.3, the plaintiffs have filed chamber summons
No.1082/2015 for setting aside abatement and appointment of
administrator to represent the Estate of defendant No.1 and 3. But, the
said chamber summons was dismissed vide order dated 16.12.2017.
The suit came to be abated against the defendant Nos.1 and 3.
Thereafter, the fresh Writ of Summons was issued to the defendant
Nos.2 and 4 to 7 through bailiff on 02.02.2018. It appears from the
roznama that on 03.03.2018 despite of absence of the plaintiffs or their
representative, this Court has granted two weeks time for service of
summons and direction was also issued to the plaintiff for taking steps.
Despite of the same, on 17.03.2018 the advocate for the plaintiffs filed
application for adjournment for taking steps. But the said application
was rejected by this Court on the ground that effective steps were not
taken by the plaintiff against the defendant No.2, 4 to 7.
9. It further appears that, the Learned advocate for the
plaintiff was present before the Court when the suit was dismissed
against the aforesaid defendants. Despite of the same, the plaintiffs
have not filed present notice of motion within 30 days. According to the
plaintiffs, they were informed by their advocate about the dismissal of
suit on 25.03.2018 and since the date of knowledge they have filed
present notice of motion within one month.
10. It can be gathered from record that due to non-compliance of
order dated 03.03.2018, this Court has dismissed the suit. It appears
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from the pleading of the plaintiffs that, they have not mentioned the
sufficient reasons why they have not complied the order of the Court
despite of extension of time and not taken steps to serve the Writ of
Summons against the defendant No.2, 4 to 7. While making application
to set aside the order passed by the Court the plaintiffs have to satisfy
the Court that they were prevented by the sufficient cause from
noncomplying the order passed by this Court. The plaintiffs have failed
to demonstrate sufficient reason as aforesaid, therefore, I do not find
any substances in the submission of the plaintiffs that they are ready to
comply the order passed by this Court on 03.03.2018. In the result, I am
of the view that, the plaintiffs failed to make out their case for
restoration of the suit by setting aside order dated 17.03.2018 passed
by this Court. Hence, following order is passed-
ORDER
1. Notice of Motion No.1831 of 2018 stands dismissed.
2. No order as to Costs.
3. The Notice of Motion No. 1831 of 2018 is disposed of
accordingly.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Date : 23.12.2024 C.R. No.03
Dictation typed on :
Checked & Signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02.01.2025. 05.30 p.m. Mrs. Vasanti Dattatray Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 23.12.2024.
Judgment/Order signed by P.O. on 02.01.2025
Judgment/Order uploaded on 02.01.2025
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