Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2245/19 in Suit No. 9417/2000. 1 Order.
MHCC010061752019
Presented on : 20-06-2019
Registered on : 20-06-2019
Decided on : 06-01-2024
Duration : 4 years, 6 months, 16 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2245 OF 2019
IN
SUIT NO. 9417 OF 2000
(Old High Court Suit No. 4541 Of 2000)
Shankar Agarwal and another )...Plaintiffs
Versus
Prem Kumar Modi and others )...Defendants
Shri Siddhesh Avhad, Advocate for the plaintiffs.
Shri B.K.Gala, Advocate for the defendant no.7 and 8.
None for defendant no.1 to 6.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 6th JANUARY, 2024.
ORDER
1. The plaintiff has taken out the notice of motion for
condonation of delay of 1740 days in setting aside the order passed on
18/01/2014 and to restore the Suit No. 9417/2000 at its original stage.
2. It is alleged by the plaintiff that initially suit was pending
-- 1 of 6 --
N/m No. 2245/19 in Suit No. 9417/2000. 2 Order.
before the Hon’ble High Court. At that time plaintiff used to attend the
suit. The plaintiff is old aged person suffering from various diseases and
he required frequent medical aid. The interim order was passed in
favour of plaintiff. The advocate for the plaintiff informed that after
passing of interim order matter shall now come on board after few
years. In meanwhile, matter came to be transferred to this court in the
year 2014. The transfer of suit never informed by the advocate to the
plaintiff. The plaintiff no.2 was suffering from abdomen pain, she was
required to be hospitalized regularly. Due to illness of plaintiff no.2,
plaintiff no.1 being husband has to look after her. After plaintiff
approached to the present advocate, then he came to know that suit
was dismissed for want of prosecution. The plaintiff has addressed a
letter to earlier advocate and asked explanation, but advocate had not
given any response. The said letter is filed on record. The contention of
the plaintiff that because of the negligence on the part of advocate,
plaintiff should not suffer. Hence, plaintiff prayed that notice of motion
be allowed, delay be condoned and suit be restored at its original stage.
3. The defendant no.1 to 4 appeared in the matter and
resisted the notice of motion by filing affidavit in reply. The contention
of the defendant that plaintiff could not blame advocate only. It is the
duty of the plaintiffs to see the progress of the matter. There are no
sufficient grounds to condone the delay. The plaintiffs are sleeping over
their rights for a long time, therefore, not entitled for the relief prayed.
The ground mentioned about the medical condition of plaintiff no.2 is
not enough to condone the delay of 1740 days. Day-to-day delay is not
sufficiently explained. Therefore, defendant prayed for rejection of the
notice of motion.
-- 2 of 6 --
N/m No. 2245/19 in Suit No. 9417/2000. 3 Order.
4. Perused notice of motion, reply filed by the defendant,
affidavit in rejoinder filed by the plaintiff. Heard both advocates at
length.
5. The advocate for the plaintiff submitted that present suit
previously filed in the Hon’ble High Court. Later on it was transferred to
this court. The advocate did not inform plaintiff about the transfer of
the suit as well as progress in the matter. The advocate for the plaintiff
relied on the ratio in the case of Rafiq and Another V/s. Munshilal and
Another (1981) 2 Supreme Court Cases 788, therein it is held -
“The problem that agitates us is whether it is proper that the
party should suffer for the inaction, deliberate omission, or
misdemeanour of his agent. The answer obviously is in the
negative. Maybe that the learned Advocate absented himself
deliberately or intentionally. We have no material for
ascertaining that aspect of the matter. We say nothing more
on that aspect of the matter. However, we cannot be a party
to an innocent party suffering injustice merely because his
chosen advocate defaulted. Therefore, we allow this appeal,
set aside the order of the High Court both dismissing the
appeal and refusing to recall that order. We direct that the
appeal be restored to its original number in the High Court
and be disposed of according to law.”
6. The advocate for the defendant submitted that delay of
1740 days is a huge delay. Therefore plaintiff is not entitled for the
condonation of the same. The plaintiff has failed to explain the details
about the delay of 1740 days. The explanation not with specific dates
and cogent reasons. The suit of the plaintiff was dismissed twice for
want of prosecution. There is a unexplained delay of two years.
7. Having heard both advocates and I have gone through the
-- 3 of 6 --
N/m No. 2245/19 in Suit No. 9417/2000. 4 Order.
documents filed alongwith notice of motion. The plaintiff has filed case-
papers, report, discharge card regarding the illness of plaintiff no.2.
8. The delay can be condoned if it is brought on record that
there is sufficient cause for restoration of suit. If the sufficient cause is
shown and if it is found that delay is not intentional, deliberate, then
delay can be condoned. In case at hand, the contention of the plaintiff
that his wife being a senior citizen and suffering from illness, the doctor
advised defendant to take bed-rest. In support of the said contention
plaintiff has filed on record medical case-papers, medicines advised to
the plaintiff no.2, the medical receipts and other papers clearly show
that the plaintiff no.2 was required medical aid time to time within the
abovesaid period. The plaintiff has also filed on record the discharge
card and other medical report though it not cover entire span of 1740
days but it sufficiently show that the plaintiff no.2 was not feeling well.
9. The contention of the plaintiff that the suit is transferred
from the Hon’ble High Court somewhere in the year 2014 and in that
year itself suit was dismissed for want of prosecution. The contention of
the plaintiff that the previous advocate not informed the plaintiff about
the transfer of the suit from High Court to Civil Civil Court. The
advocate has not attended the matter, therefore it was dismissed.
10. I have gone through the judgment and order of other suit
filed against the plaintiff no.2 in Small Causes Court. Plaintiff no.2 also
failed to contest the said suit also. Therefore, in my opinion, the
advocate for the plaintiff not attended the matter, plaintiff have no
knowledge about the transfer of the suit. So in view of the observations
of Hon’ble Supreme Court in Rafiq and another case (supra) that party
-- 4 of 6 --
N/m No. 2245/19 in Suit No. 9417/2000. 5 Order.
should not suffer for the inaction of his advocate. I have also considered
that if advocate for the plaintiff regularly intimated them about the
progress of matter, plaintiff should not wrote letter to him and advocate
also could not keep silence. Therefore, suit needs to be restored at its
original stage.
11. It is a matter of record that plaintiff has taken out the
notice of motion after a long time i.e. 1740 days. Plaintiff seek relief for
setting aside dismissal order. If the suit is restored, then defendant will
suffer loss but it can be compensated in terms of money. Considering
this, I pass following order:
- ORDER -
1. Prayer clause (a), (b) and (c) of Notice of Motion No. 2245/2019
is made absolute subject to cost of Rs.25,000/-.
2. The plaintiffs are directed to pay cost to the defendant or deposit
in this court within six weeks from the date of this order, after payment
of cost, suit be restored at its original stage.
3. N/m No. 2245/2019 is disposed off accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 06/01/2024. Mumbai.
1. Dictated online on : 06/01/2024.
2. Placed for correction on : 15/01/2024.
3. Checked on : 16/01/2024.
4. Correction carried on : 16/01/2024.
5. Signed on : 16/01/2024.
6. Delivered to Certified :
Copy Section on
-- 5 of 6 --
N/m No. 2245/19 in Suit No. 9417/2000. 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17/01/2024. 1.23 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 06/01/2024.
Judgment/Order signed by P.O. on 16/01/2024.
Judgment/Order uploaded on 17/01/2024.
-- 6 of 6 --