Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2158 OF 2019
IN
SUIT NO.594 OF 2017
Mr.Shivprasad Gauripado Chakravorty ..Plaintiff
V/s
Santosh Sridar Pawar and ors ..Defendants
Ld. advocate Avinash Dubey for the plaintiff
Ld. advocate Shraddha Jadhav for defendant no.1
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 10/02/2020
ORAL ORDER
1. This notice of motion is tendered by the plaintiff
interalia for setting aside and condoning the delay
and to restore the suit.
2. Heard.
3. The contention of the plaintiff is that in the year
2011, he was unwell and continuously was having
health issues. During the filing of the suit he had to
undergo surgery and was not in a position to give
proper instructions to his advocate and therefore due
to miscommunication he has to change his advocate
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on record. He is permanent resident of Calcutta and
also residing at Mumbai. He is also unaware about
the status of the proceedings. He was under
bonafide belief that his advocate was looking after
the matter and he was not much conversant with the
lacuna in the matter to be complied with. Due to lack
of communication resulted in the dismissal of the
suit. The plaintiff has changed the advocate and his
advocate took search of the proceedings and found
that the suit was dismissed for default. His earlier
advocate Mr.Bhujiya informed him that he is going
to his hometown and after his return he will give his
NOC and return all the papers. The plaintiff was
going to Calcutta to Mumbai and due his
hospitalization from April 2015 to April 2019, he was
unable to engage any advocate for restoring the suit.
He is under the impression that suit is pending for
hearing and final disposal. The delay is not
intentional.
4. The notice of motion is opposed on the count that
suit was filed on 16/08/2016. Till 2017, the
objection was not removed. There is nothing on
record to show that as to why it took one and half
years to apply for restoration of the suit. The plaintiff
time and again changes the advocate. The plaintiff
has not made out case for restoration of the suit.
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Hence, prayed for dismissal of the notice of motion.
5. On perusal of the record and the submissions
canvassed by the parties, it appears that plaintiff
failed to remove the office objections for several
months and was negligent and hence suit was
dismissed for want of prosecution. After the
dismissal of the suit on 25/01/2017, the plaintiff has
tendered the notice of motion on 10/06/2019 after
the considerable delay of two and half years. The
plaintiff has assigned various reasons of his ill health
and also negligence of his advocate. He has
produced several documents as regard his ill health.
It is the contention of the plaintiff that he is
frequently travelling to Calcutta; then he could have
attended the Court. The negligence of the advocate
as pointed out but there is insufficient material to
establish the same.
6. At this juncture, it is to be considered that the suit
was dismissed on technical ground for not removing
the office objections. No right is accrued in favour of
the defendant. Technicalities cannot take away the
substantial rights of the parties. There should not be
hyper technical and pedantic approach in dealing
with such type of motion. The matter was not
reached to stage of hearing and even the writ of
summons were not served upon defendants. In this
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background, the notice of motion, in the interest of
justice needs consideration. Hence, it is expedient to
pass following order:-
ORDER
1. N/M No.2158/19 is allowed in terms of prayer
clause (a) subject to cost of Rs.2,500/- to be paid by
plaintiff to defendant no.1 within a period of four
weeks from today.
2. Payment of cost is subject precedent.
3. On compliance of order, the suit no.594/2017 be
restored to its file.
4. The plaintiff after restoration of suit shall remove
all pending office objections within a period of two
weeks.
5. N/M No.2158/19 is disposed of accordingly.
10/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 10/02/2020
transcribed on : 28/02/2020
Signed on : 03/03/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
04/03/2020 at 4.00 pm.
MRS.T.C.KAMBLE
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Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
10/02/2020
Judgment and order signed by P.O. 04/03/2020
Judgment/order uploaded on 04/03/2020
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