Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2266/2019 ..1.. Suit No.300/2013
CNR No.MHCC010062272019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.2266 OF 2019
IN
SUIT NO.300 OF 2013
Popular Cooperative Housing Society Ltd. .. Plaintiffs
Versus
Jaibala wd/o. Ashok suryakant Zaveri & Another .. Defendants
Appearance:
Mr. B.R.Dalal, advocate for plaintiff
Defendants : Absent.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 23rd September, 2019
ORAL ORDER
1) Plaintiffs have taken out present Notice of Motion
for setting aside order dated 11.6.2019 whereby suit No.300 of
2013 was dismissed in default and prayed to restore the said suit.
2) It is the contention of plaintiffs that initially said
suit was pending in the court of Hon'ble Principal Judge i.e. C.R.
No.19. Honorary Secretary of the plaintiffs was attending said
matter in the court on every date. Honorary Secretary of the
plaintiffs has filed affidavit in lieu of examination in chief in the
said matter and also list of documents along with documents
which are relied upon by the plaintiffs. Hon'ble Principal Judge
was pleased to mark exhibit to the original documents filed by the
plaintiffs on 31.1.2019 and placed the suit for cross examination
-- 1 of 6 --
NM No.2266/2019 ..2.. Suit No.300/2013
of PW1 on 12.2.2019. On said date matter was adjourned to
7.3.2019 for cross examination of PW1. Again, on that date matter
was adjourned to 22.3.2019. On 22.3.2019 matter was not listed
on the board of court of Hon'ble Principal Judge and on inquiry by
advocate for plaintiffs, judicial clerk of said court informed him
that said suit has been transferred to CR No.9. Thereafter PW1
and advocate for plaintiffs went to CR no.9 to attend the said suit.
But, on that day said suit was adjourned to 9.4.2019 as court time
was over. On 9.4.2019 PW1 along with plaintiff's advocate went to
CR No.9 to attend said suit but by that time said suit was already
called and on making inquiry by plaintiff's advocate, judicial clerk
of CR No.9 informed him that suit was adjourned to 18.6.2019.
Accordingly, advocate for plaintiffs noted the said date in his
diary. Thereafter they did not make search on website of the
court. On 18.6.2019 PW1 along with plaintiff's advocate went to
CR No.9 to attend said case but, said suit was not listed on the
board of CR No.9. Thereafter, on going through official website,
PW1 and plaintiff's advocate came to know that said suit was
listed on 11.6.2019 in this court and was dismissed in default.
3) It is further contended that plaintiff is interested to
prosecute the suit against the defendants and he being duly
authorised by plaintiff's society was attending the said suit. But,
on 9.4.2019 as plaintiff's advocate reached CR No.9 late to attend
said suit and due to giving information of wrong date plaintiff's
advocate could not attend the suit on 11.6.2019. Accordingly,
plaintiffs made prayer in above terms.
4) Despite service of Notice of Motion defendants did
-- 2 of 6 --
NM No.2266/2019 ..3.. Suit No.300/2013
not appear therefore, Notice of Motion proceeded further.
5) In view of above facts following points arise for my
determination and I have recorded my findings to the same with
reasons to follow as under:
POINTS FINDINGS
1) Whether plaintiffs prove that
there is sufficient cause for non
appearance of their representative
when suit was called on for
hearing?
…Yes.
2) What order? As per final
order.
REASONS
As to Point Nos.1 & 2 :
6) Perused Notice of Motion, affidavit in support of it
and record and proceeding in suit No.300 of 2013. At the outset, I
would like to mention that the suit was dismissed in default on
11.6.2019 and present Notice of Motion was taken out by the
plaintiffs on 20.6.2019. Thus, Notice of Motion is taken out by the
plaintiffs within the prescribed period of limitation i.e. within 30
days from the date of order of dismissal of suit in default.
7) I would further like to mention that plaintiffs have
filed affidavit of their Honorary Secretary in support of present
Notice of Motion. But defendant failed to appear and consequently
failed to controvert averments made in the affidavit in support of
Notice of Motion filed by the plaintiffs. Thus, same remained
unchallenged.
-- 3 of 6 --
NM No.2266/2019 ..4.. Suit No.300/2013
8) On perusal of roznama in suit No.300/13 it is
apparent that affidavit of evidence on behalf of plaintiff was filed
along with list of documents on 3.10.2018 and documents were
marked exhibit on 31.1.2019. It appears that during said period
advocate for plaintiff appeared in the said suit. Then matter was
adjourned to 12.2.2019 for cross examination. On that date PW1
Dipen Pandit was present but nobody was present on behalf of
defendants. Matter was adjourned to 7.3.2019 for cross
examination. On that date also PW1 Dipen Pandit was present but
nobody appeared on behalf of defendants. Then matter was
adjourned to 22.3.2019. On that day court was on leave. So it was
adjourned to 9.4.2019. Then matter came to CR No.9. On that day
none present for plaintiff and matter was adjourned to 11.6.2019
for dismissal order and then matter was transferred to this court
and on 11.6.2019 matter was called twice i.e. at 12.45 p.m. and
4.05 p.m. But nobody appeared on behalf of plaintiff. So, matter
was dismissed in default. During course of arguments Ld. advocate
for the plaintiffs submitted that there is misunderstanding about
the future date informed by the judicial clerk of CR No.9. He
submitted that he understood the date as 18.6.2019 instead of
11.6.2019 because of information about date was given in Marathi
language and there is resemblance in pronunciation about the
date 11 and 18 as (vdjk vkf.k vBjk). Possibility cannot be ruled
out about misunderstanding the pronunciation about the date
given by the judicial clerk of CR No.9. In my view reason assigned
by plaintiffs is sufficient for their non appearance when the suit
was called on for hearing. Hence, I answer point No.1 in
affirmative.
-- 4 of 6 --
NM No.2266/2019 ..5.. Suit No.300/2013
9) In view of above findings order dated 18.6.2019
deserves to be set aside and suit No.300/13 requires to be restored
on file of this court at its original number. However, considering
facts of matter certain costs is required to be imposed upon the
plaintiffs. Hence, pass following order.
ORDER
1. Notice of Motion No.2266 of 2019 is allowed
and made absolute in terms of prayer clause
(a) subject to deposit of cost of Rs.500/ in
legal aid funds of DLSA, Mumbai within
period of two weeks from the date of order.
2. After depositing of costs by the plaintiff suit
No.300/13 be restored on file of this court at
its original number and at its stage which was
prior to dismissal of the suit.
3. Accordingly Notice of Motion is disposed of.
(M. T. Asim)
Judge
Date : 23.09.2019 Gr. Bombay
Typed on : 24.09.2019
HHJ signed on :24.09.2019
-- 5 of 6 --
NM No.2266/2019 ..6.. Suit No.300/2013
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24.09.2019, 2.39 p.m.
UPLOAD DATE AND TIME Mrs. Shobha A. Shekade
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
23.09.2019
JUDGMENT/ORDER signed by P.O.
on
24.09.2019
JUDGMENT/ORDER uploaded on 24.09.2019
-- 6 of 6 --