Order 1

Order Details: Notice of Motion
Pdf Text: MHCC01-006137-2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1879 OF 2018
IN
S.C. SUIT NO.7684 OF 1997
(HIGH COURT SUIT NO.4476 OF 1997)
Sou. Madhuri Sanjay Patwardhan ] … Plaintiff
V/s.
1. Reliance Industries Ltd & Ors. ] ... Defendants
Appearances :-
Ld. Adv. Mr. Suraj Kudalkar for plaintiff.
Ld. Adv. Mr. Vipul Shukla for defendant Nos.1 & 2.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G .
BORLEPWAR
(C.R.No.20)
DATED : 2nd November, 2020
ORAL ORDER
1. Plaintiff took out this Notice of Motion for condonation of
delay in taking out this Notice of Motion, for setting aside order of
dismissal of suit for want of prosecution and for restoration of suit.
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2. Perused Notice of Motion, affidavit in support of Notice of
Motion and reply of defendant No.1 and 2. Heard both Advocates.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether delay in filing Notice of
Motion for setting aside the order of
dismissal of suit for want of prosecution
can be condoned ?
In the affirmative.
2 Whether order of dismissal of suit for
want of prosecution can be set aside ?
In the affirmative.
3 What Order ? Notice of motion is
allowed as per final
order.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of the plaintiff that defendant No.5
filed written statement. Thereafter matter posted for long cause suit.
Defendant No.1 had issued divident warrant in respect of her shares by
letter dated 28.12.2017. Immediately she approached to her advocate.
After inquiry she came to know that the suit is transferred from Hon’ble
High Court to this Court in the month of December, 2012. She had not
received any information from this Court regarding transfer of suit. The
suit came on board of this Court for the first time on 11.12.2012 in the
caption of framing issues. Issues framed and matter posted for evidence
of plaintiff. Her previous advocate did not inform her about the last
date of the matter and transfer of suit from Hon’ble High Court to this
Court. The suit was posted for filing the evidence on 28.08.2013,
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07.09.2013, 30.09.2013 and 19.10.2013. Lastly the suit dismissed for
want of prosecution as per order dated 19.10.2013.
5. It is further contention of the plaintiff that there was no ill
intention on the part of plaintiff for not attending the Court. She
contacted her earlier Advocate but came to know that her earlier
advocate stopped practice from City Civil Court and started fresh
practice before the Hon’ble High Court. Therefore, said order be set
aside and suit be restored.
6. It is further contentin of the plaintiff that after knowing the
dismissal of the suit she was searching for another advocate. She could
not get new advocate immediately. She came in contact with present
advocate in the month of March, 2018. Therefore, delay in filing the
Notice of Motion be condoned.
7. In brief, it is contention of the defendant No.1 and 2 that
Notice of Motion is barred by Law of Limitation. Plaintiff approached to
this Court by suppressing material facts. Delay in filing the Notice of
Motion is not explained. There are no sufficient grounds to condone
the delay. Advocate for the plaintiff was aware of transfer of this suit to
this Court. The suit was transferred in the month of October, 2012.
Plaintiff and her advocate did not attend the Court. Consequently the
suit is dismissed. There is delay of more than four years. Hence, Notice
of Motion be dismissed.
8. Perused Article 122 of the Limitation Act, 1963. As per the
said provision period of limitation is 30 days to file application from the
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date of order of dismissal to restore a suit dismissed for default of
appearance or for want of prosecution.
9. Perused Section 5 of the Limitation Act. As per the said
provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
may be admitted after the prescribed period, if the appellant or the
applicant satisfies the Court that he has sufficient cause for not
preferring the appeal or making the application within such period.
10. Perused Order 9 Rule 8 of the Code of Civil Procedure. As
per the said rule, where the defendant appears and the plaintiff does
not appear when the suit is called on for hearing, the Court shall make
an order that the suit be dismissed, unless the defendant admits the
claim, or part thereof, in which case the Court shall pass a decree
against the defendant upon such admission, and, where part only of the
claim has been admitted, shall dismiss the suit so far as it relates to the
remainder.
11. Perused Order 9 Rule 9 of the Code of Civil Procedure. As
per the said rule, where a suit is wholly or partly dismissed under Rule
8, the plaintiff shall be precluded from bringing a fresh suit in respect of
the same cause of action. But he may apply for an order to set the
dismissal aside, and if he satisfies the Court that there was sufficient
cause for his non-appearance when the suit was called on for hearing,
the Court shall make an order setting aside the dismissal upon such
terms as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.
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12. The order of dismissal of suit is dated 19.10.2013. This
Notice of Motion is filed on 5.5.2018. In view of Article 122 of
Limitation Act, the Notice of Motion is not filed within Limitation Act.
13. According to the plaintiff, she is not aware of transfer of
suit from Hon’ble High Court to this Court. Here advocate also did not
inform her about the transfer of the suit. Her Advocate stopped practice
before City Civil Court and started fresh practice before the Hon’ble
High Court. For a moment, if it is presumed that she was not aware
about the transfer of the suit but it was her duy to keep touch with the
matter by attending the Court or either by contacting to her advocate.
Therefore, the plaintiff is at fault for dismissal of the suit. According to
the plaintiff she could not get Advocate immediately to file Notice of
Motion to restore the suit. She met present advocate in the 2nd week of
March, 2018. There is delay in filing the Notice of Motion. There are
sufficient grounds to condone delay and to set aside the order of
dismissal of suit. Considering the facts and circumstances and the
nature of the suit though plaintiff is at fault for dismissal of the suit
because of her non appearance, I am of the opinion that if some costs is
imposed for condoing the delay in filing Notice of Motion then it will
meet the ends of Justice. Hence, I record my findings to point Nos.1
and 2 in the affirmative and point No.3 the Notice of Motion is allowed
as per final order. Hence following order:
ORDER
Notice of Motion No. 1879 of 2018 in Suit No. 7684/97 (Disposed off)
is hereby allowed as under-
1. Delay in filing this notice of motion for restoration of suit is hereby
condoned subject to costs of Rs.20,000/- (Rs. Twenty Thousand only).
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2. Time granted to deposit the said costs in the court or it be given to
the defendant no.1 and 2 on or before 14-12-2020.
3. Order of the dismissal of the suit for want of prosecution dated 19-
10-2013 is hereby set aside subject to compliance of order of the said
cost.
4. Due to Covid-19 pandemic, it is not proper to give short date for
compliance of this order.
5. After compliance of order of the costs the suit be restored to its
original stage i.e. at the stage of evidence of plaintiff on 05-01-2021.
6. After compliance of order of the costs both parties are hereby to
remain present before the court on 05-01-2021.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 02/11/2020 City Civil Court, Gr. MUMBAI
Dictated on : 02/11/2020.
Transcribed on : 12/11/2020.
Draft given on : 23/11/2020
checked on : 23/11/2020.
Signed on : 23/11/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
23.11.2020 at 03.30 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 02.11.2020
Judgment/order signed by P.O. on 23.11.2020
Judgment/order uploaded on 23.11.2020
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