Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion 1
No. 2349 of 2019
MHCC010064642019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2349 OF 2019.
IN
SUIT No. 6947 of 2003.
1. Kiran Rajesh Shah. ...Plaintiff No.1
2. Harsha Nishith Baxi. ...Plaintiff No.2
3. Parul Devang Pipalia ...Plaintiff No. 3/
Applicants.
In the Matter of
1. Kiran Rajesh Shah and Ors. … Plaintiffs.
V/s.
Madhusudan Kalidas Shah. ...Defendant.
Appearance:
Adv. Ms.Sangita Gudhka for Plaintiffs.
Adv. Yasmin Sarang for Defendant.
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR (C.R.No.59)
DATE : 06th DECEMBER , 2022
ORAL JUDGMENT
Plaintiffs have taken out the present Notice of Motion to set
aside dismissal order dated 28.07.2015 (wrongly mentioned as
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No. 2349 of 2019
28.07.2001) passed in Suit No. 6947/2003.
2. In the supporting affidavit, plaintiff No. 1(c) has contended
that the suit is for dissolution of Partnership Firm and for account. The
Court Receiver has been appointed and suit premises was kept in
possession of defendants as agent of Court Receiver. The defendant
had taken out Notice of Motion No.1503/2013 for urgent reliefs and
after its disposal, the suit was kept for hearing and for settlement on
21.07.2014. The plaintiffs were not aware of the exact stage of the suit.
The plaintiffs were not aware that the matter was pending before the
Court and they had only knowledge that matter was pending before the
Court Receiver for Royalty and other reliefs. The matter was kept for
recording of evidence on 11.02.2015 to 28.07.2015. Both the parties
were not attending the Court. The plaintiffs being Senior Citizen, was
bed ridden and was unable to communicate with his advocate. As per
the knowledge of the plaintiffs, the matter was adjourned sinedie and
therefore, they could not attend the matter and the Court dismissed the
suit on 28.07.2015. The plaintiffs and their advocate were attending
the matter before the Court Receiver regularly from time to time on the
ground of settlement. In the meantime, defendant died on 12.05.2017.
The advocate for defendant informed about the names and addresses of
legal heirs by letter dated 12.02.2019. It is prayed that the delay be
condoned and dismissal order be set aside by restoring the suit in the
files.
3. Respondents are served but they did not appear. Heard Ld.
Adv. Sangita Gudhka for plaintiffs. Perused Notice of Motion,
supporting affidavit and record. The record shows that the original
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plaintiff expired and the present plaintiffs are brought on record as his
legal heirs in 2008 itself. The record further shows that the suit was
pending for settlement till 06.12.2014 and as there was no settlement,
the issues came to be framed on 23.01.2015. Since then, both the
parties and their advocates were consistently absent in the matter and
ultimately vide order dated 28.07.2015, the Court dismissed the suit for
want of prosecution. Thereafter on 26.06.2019, the plaintiffs have
tendered the present draft Notice of Motion to set aside the dismissal
order.
4. The plaintiffs have contended that they were not aware
that the matter was pending before the Court and they had knowledge
only about the matter that was pending before the Court Receiver. They
have also contended that plaintiffs and their advocates were attending
the matter regularly from time to time on the ground of settlement.
One more reason for inability to appear is given that the plaintiff was
senior citizen and was bed ridden and was unable to communicate with
his advocate. Ld. Advocate for the plaintiffs has submitted that there is
typographical mistake and the above statement is in reference to the
original plaintiff.
5. It is the matter of record that original plaintiff expired in or
prior to 2008 as LRs are brought on record in 2008. As reflected from
the cause title, none of the present plaintiffs is senior citizen. The
reason that the original plaintiff was senior citizen and was bed ridden
is completely irrelevant for setting aside the dismissal order.
6. In the entire supporting affidavit, the deponent has not
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No. 2349 of 2019
mentioned the specific date on which he came to know about the
impugned order. The Notice of Motion is taken out after about 3 years
and 11 months from the date of passing of the impugned order. The
inconsistent statements are made in the supporting affidavit by the
deponent. At one place, he has stated that he was not aware of the
exact stage of the suit and was having full trust on the advocate. Again
he states that plaintiffs were not aware that the matter was pending
before the Court and they had only knowledge that the matter was
pending before Court Receiver. He made another statement that as per
his knowledge, the matter was adjourned sinedie hence, he could not
attend the matter. These are nothing but vague statements indicating
absence of any valid explanation.
7. There is huge delay of about 3 years and 10 months in
taking out the Notice of Motion. No valid explanation is given by the
plaintiffs to explain the delay. It is contended that defendant died on
12.05.2017 and his advocate informed about LRs on 12.02.2019. There
is no material placed on record in support of the above contention.
Moreover, even if accepted, it does not explain the delay in the present
matter. Thus, the plaintiffs have failed to explain the delay. The
plaintiffs have further failed to explain the satisfactory reason for their
inability to appear in the Court when the matter was called out for
hearing. Their statement that they were attending the matter before the
Court Receiver alongwith their advocate shows that they were in
constant touch with their advocate. Their nonappearance in the suit
points towards their inaction to appear in the suit on the dates when
the suit was for hearing.
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No. 2349 of 2019
8. Though the Notice of Motion is not contested, as other side
has not filed reply, the burden is necessarily upon the plaintiffs to
satisfy the Court that there is sufficient cause for condoning delay in
taking out the Notice of Motion and for their failure in attending the
Court when the matter was called on for hearing. In the above
discussed facts, in the light of the vague statements made in the
supporting affidavit, the plaintiffs have completely failed to make out
the case for condonation of delay. In these circumstances, in my view,
no case is made out to set aside the impugned order. Therefore, the
Notice of Motion deserves to be dismissed.
Order
1. Notice of Motion No. 2349 of 2019 is dismissed.
2. Notice of Motion No. 2349 of 2019 is disposed off.
Date :06.12.2022 Shri. S. B. Pawar
City Civil & Sessions Court,
Gr. Mumbai.
Dictated on : 06.12.2022
Transcribed on : 06.12.2022
Checked on :13.12.2022
Signed on :14.12.2022.
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No. 2349 of 2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.12.2022 at2.00 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 06.12.2022
Order signed by P.O. on 14.12.2022
order uploaded on 15.12.2022
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