Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2252/19(suit 4808/12)
MHCC010061872019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2252/2019
IN
NOTICE OF MOTION NO. 1211 OF 2013
IN
S. C. SUIT NO.4808/2012
3 (a) Smt. Shushila Sanjay Jain
3 (b) Shri DarshSanjay Jain
3(c) Kum. Palak Sanjay Jain ... Applicant/Defendants
In the matter between :
Sanika Vijay Thakur ... Plaintiffs
V/s.
Aakruti Builders and Developers & Ors. .. Defendants
Appearances :
Adv. Chitra Burhade for plaintiff.
Adv. Redekar for defendant nos.3(a) to (c).
Coram : His Honour Judge
Shri. A.H.Laddhad
CR No. : 03.
Date : 18.5.2022.
ORDER
1. Legal heirs of Defendant No.3 filed instant Notice of
Motion, seeking condonation of 460 days delay in restoring the Notice
of Motion No.1211/2013 which has been dismissed vide order dated
12.3.2018 for nonprosecution.
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2. It is contended by the applicants that initially the
Defendant nos.1 and 3 were represented by their Adv. Mrs. Punita
Arora, through her they have tendered Notice of Motion No. 1211/2013
seeking dismissal of the suit u/s.12 of Code of Civil Procedure. It is
contended that the plaintiff herein filed present suit on the same cause
of action of earlier Suit no.2020/2008 which was withdrawn by her
without seeking any liberty to institute the present suit.
3. It is further contended that the aforesaid Notice of Motion
no.1211/2013 was duly heard by the earlier Court and the matter was
kept on 05.08.2013 for orders on above Notice of Motion. However, in
the meantime due to change of assignment, the succeeding Court
directed the parties to advance their argument afresh. It is further
submitted that the N.M. came to be adjourned from time to time. In the
meantime, Plaintiff and the Defendant Nos. 1 and 3 were in the midst of
settlement talk and they were exploring amicable settlement of the
matter. However, in the meantime the original Defendant no. 3 expired
on 14.11.2015 and he was the key person for concluding the settlement
talks from the defendant side.
4. It is further contended that after the sudden demise of
Defendant No.03, without any notice the Advocate stopped attending
the matter and did not inform them about the progress of the matter. It
is further submitted that, the legal heirs of the Defendant No. 03 were
under impression that Adv. Arora is continuing to attend the hearing of
the matter and therefore, she would proceed with the argument of
Notice of Motion No.1211/2013 as and when necessary. It is submitted
that therefore, they have engaged services of Adv. Mrs. Savina Bangera
and they were under impression that their matter will be attended by
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new Advocate. However, she also did not bother to attend the matter
and to inform them. Therefore, due to nonappearance of the Advocate
this Court, on 12.03.2018, dismissed the N.M No. 1211/2013 for want
of prosecution.
5. It is further submitted that due to the fault of advocate, the
defendants were made to suffer. The applicants challenge the
maintainability of the suit by way of NM No. 1211/2013 which goes to
the root of the matter. The delay caused due to the aforesaid reason is
unintentional and therefore, the applicants prayed for condonation of
460 days delay in presenting the present Notice of Motion and for
restoration of N/M no.1211/2013.
6. The Notice of Motion is opposed by the plaintiff by filing
say. The plaintiff admitted that the original defendant no. 3 was duly
represented through Adv.Punita Arora. However, the applicants/
defendants failed to explain their nonappearance in the matter. Hence,
the plaintiff prayed for the dismissal of Motion.
7. I have heard both the sides. Perused N.M, reply as well as
roznama of the proceeding. It appears that since 22.03.2013 Adv.
Punita Arora had appeared for defendant nos. 1 and 3 and on 5.1.2016
she has informed to the Court that the Defendant no.3 expired on
14.11.2015. Thereafter, the plaintiff filed Chamber Summons no.
565/2016 for bringing legal heirs of Defendant no. 3 on record. That
time also Adv. Mrs. Punita Arora had appeared and undertook to file
V.P on behalf of the proposed defendants, which was filed by her on
30.09.2012. The record further shows that she had appeared till
20.01.2017 and since then, nobody had appeared for defendants.
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8. It is pertinent to note that, my Predecessor vide order dated
12.03.2018 allowed the Chamber Summons No.565/2016 thereby
allowed to add legal representative of deceased defendant no.3.
However, none was present on behalf of legal heirs of Defendant No.
03, therefore Notice of Motion 1211/2013 was dismissed for non
prosecution. I am of the view that this is the error apparent on the face
of record. When it was already known fact that Defendant No.3 is
expired then the Notice of Motion preferred by the Defendant no. 3
ought not to have been dismissed for want of prosecution. The
applicant assigned the reason of dismissal and of delay the non
appearance of their advocate. The applicants/defendants stated that
they have engaged the services of Adv. Mr. Savina Bangera. However,
she also failed to appear in the matter. But, I do not find her V.P to
represent them. On the contrary, the V.P of Adv. Arora is on the record
to represent Defendant No. 3(a) to 3(c). The record shows that after
2011 she did not appear and therefore, the order came to be passed.
The reasons assigned by the applicants/defendants are sufficient to
condone the delay.
9. The applicants/defendants filed the N/M no.1211/13 for
dismissal of the suit on the ground that the present suit is not
maintainable in view of the fact that the plaintiff while withdrawing
earlier Suit did not obtain the liberty to file the present suit. It pertinent
to note that the present Defendant nos. 3(a) to 3(c) were added as legal
heir of original defendant no.3 who was the partner of the Defendant
No.1. The plaintiff filed present Suit seeking permanent injunction
restraining the Defendants from entering in the suit property and
transferring the apartments to be constructed in the new building on
the suit property. Thus, looking to the nature of reliefs claimed as well
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as the fact that the advocate although represented the Defendants since
beginning but without any cause did not appear, causing serious
prejudice to the interest of the defendants. Therefore, in my view the
N/M No. 1211/2013 needs to be restored to its original file. Moreover,
when the original Defendant No.3 expired and before bringing their
legal heirs on record the aforesaid Notice of Motion ought not to have
been dismissed for nonprosecution. The aforesaid order certainly
depriving the rights of legal heirs of the original defendant no.3.
Therefore, for the aforesaid reasons, I am of the view, that the Notice of
Motion needs to be allowed. Thus, I proceed to pass the following
order:
ORDER
1. Notice of Motion No. 2252/2019 is hereby allowed.
2. Notice of Motion No.1211/2013 be restored to its file.
3. Parties to bear their own costs.
4. Notice of Motion No. 2252/2019 is disposed of accordingly.
(A.H.Laddhad)
Judge,
Dated : 18.5.2022 City Civil and Sessions Court,
Dictated on : 18.5.2022 Greater Bombay (CR 03)
Typed on : 18.5.2022
Signed on : 25.5.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Date 25.5.2022, at 4.15 pm . (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD (C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 18.5.2022
JUDGMENT/ORDER signed by P.O. on 25.5.2022
JUDGMENT/ORDER uploaded on 25.5.2022
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