Final Order 1

Order Details: Notice of Motion
Pdf Text: Daily Status
IN THE COURT OF :COURT 08 ADDL SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0102286/2019
1.B.H.Chemburkar Mandai Licensees Association 2.Mr.Sunderjeet Singh Chandel 3.Mr.Pravin
Bhatia Vs The Municipal Corporation of Gr. Mumbai
Date : 24-06-2019
Business : Adv. Holamagi for plaintiff present. Adv. Khandagle with
Adv. Parshurami for MCGM/Def. present. Order on NM.
This is an application by NM under Order IX Rule 9 of the
Code of Civil Procedure 1908, for setting aside order dtd.
12.03.2019 whereby suit was dismissed in default. In this
application the plaintiffs have to satisfy the Court that there
was sufficient cause for their non appearance when the suit
was on called for hearing. In the affidavit along with NM it
is stated that the matter was referred to mediation, the
plaintiffs lost the track during that proceeding and they
were under impression that the matter would be settled. It is
further stated that during summer vacation when plaintiffs
took search of the proceeding they came to know that the
suit came to be dismissed on 12.03.2019. According to ld.
Adv. for plaintiff the suit is subject matter of 240 premises,
the officers of defendant MCGM are acting high handedly,
therefore, this NM be allowed and the suit be heard on
merits. Ld. Advocate for defendant MCGM has filed reply
and narrated that from 03.07.2018 to 08.02.2019 the
plaintiffs did not prosecute the suit, on 12.03.2019 the
matter was under the caption of dismissal still the plaintiff
did not turn up and therefore, the order of dismissal was
legal one. Ld. Advocate for the defendant has pointed out
that the plaintiffs, mere licensees, are stalling a public
project and therefore, there is threat to life of the occupiers
as well as purchasers of the shops in the suit building. He
has prayed to dismiss the NM. After going through the
above statements, the plaintiffs were duty bound to satisfy
the Court that there was sufficient cause for their non
appearance when the matter was called on for hearing on
12.03.2019. After going through the roznama, no written
statement order was passed against defendant on
11.10.2018 and matter was fixed for recording evidence on
13.12.2018. On latter date and on 08.02.2019 plaintiffs did
not turn up. Therefore, matter was fixed for dismissal on
12.03.2019. On the latter date names of plaintiffs were
called at 11.20 a.m. and 12.30 p.m. Their absence was
noted and the suit was dismissed in default. In the entire
affidavit with NM the plaintiffs have not uttered a single
word that there was sufficient cause for their non
appearance when the suit was called on for hearing on
12.03.2019. Instead they have alleged that officers of
defendant MCGM played fraud, they could not keep track
of the suit due to mediation proceeding which are not
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sufficient causes for restoration of suit under order IX Rule
9 of C.P.C. Ld. Adv. for the plaintiffs has requested to hear
the suit on merits as bread and butter of more than 240 shop
keepers is depending on their respective premises/areas in
the suit building. However, the proceeding has to be
decided on hard facts and not on sympathy. As the plaintiffs
have failed to show sufficient cause for their non
appearance when the suit was called on for hearing on
12.03.2019, no case is made out for restoration of the suit.
Hence NM is dismissed. NM be registered for statistical
purpose. Ld. advocate for plaintiffs requests to extend
earlier order for 8 weeks to prefer appeal against the order.
Ld. Adv. for defendant MCGM objects to the said prayer
stating that even after dismissal of suit on 12.03.2019 the
order is continued for more than 3 months. For giving
opportunity to the plaintiff and considering that interim
protection was granted to the plaintiffs, earlier order to
continue for two weeks from today.
Nature of Disposal : DISMISSED
Disposal Date : 24-06-2019
COURT 08 ADDL SESSIONS JUDGE
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