Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2470/19 (Suit 1939/15)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.2470/2019
IN
S.C. SUIT NO. 1939/2015
Mrs Swati Jayant Shah ..Plaintiff
V/s.
1. Kuwarsingh & Associates
2. Mr. C.K. Tripathi ..Defendants
Appearance:
Adv. Mr. Ranpise for plaintiff.
Adv. Mr. Singh, defendant no.1, in person.
Adv. Mr. Abhishek Tripathi, defendant no.2,in person.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 25.11.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiff
seeking recall of orders dated 8.3.2019 and 11.6.2019 in Suit No.
1939/2015 and to allow the plaintiff to file evidence affidavit along
with list of documents, and to restore and decide the suit on merit. The
Motion is supported by an affidavit of plaintiff Mrs. Swati Shah.
Defendants no.1 and 2 have opposed the Motion by filing their verified
reply/ affidavit in reply. I have perused the same.
2. I have heard Ld. Adv. Mr. Ranpise for the plaintiff and
defendants no.1 and 2, who are advocates by profession.
3. Ld Counsel for the plaintiff submitted that, in the present
suit issues were framed by the court on 29.6.2018 and it was posted for
evidence on 24.9.2018. It is submitted that, on that date, the plaintiff
has sought adjournment, which was granted by the court subject to
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costs of Rs.1000/. On the next date, on 28.11.2018, advocate for the
plaintiff was present and he requested the court for another
adjournment by paying costs, already awarded, on the ground that the
plaintiff's old and handicapped mother was required to be taken to
hospital for treatment. The adjournment was granted by the court and
matter was adjourned to 20.2.2019.
4. It is further submitted that, on 20.2.2019, advocate for the
plaintiff and her husband were present and submitted an application for
adjournment on the ground that the mother of the plaintiff was not well
and she was to be taken to the hospital. The court had declined to
accept the reasons for adjournment, however granted adjournment till
8.3.2019. It is submitted that,on 8.3.2019, the plaintiff could not
remain present in the court nor her advocate Mr. Ranpise remained
present before the court. Therefore, the husband of the plaintiff, who
was present, requested the court for adjournment but had wrongly
stated before the court that the advocate was busy in another court. This
court had rejected the request of the husband of the plaintiff and
passed order closing plaintiff's evidence and matter was adjourned to
11.6.2019.
5. On the above factual background, it is submitted on behalf
of the plaintiff that, her advocate could not attend the court on
11.6.2019 but she was present. Defendant's advocate filed pursis closing
their evidence and therefore the matter adjourned for arguments on
29.6.2019. It is submitted on behalf of the plaintiff that, when she had
contacted her advocate Mr. Ranpise, she had informed him about the
proceeding in the court. Adv. Mr. Ranpise on behalf of the plaintiff had
told her that he had a cataract problem to his left eye and therefore, on
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8.3.2019, he had to go to Dr Keiki R. Mehta for check up, who had
suggested a cataract operation which was performed on 11.3.2019. As
the advocate for the plaintiff had undergone cataract operation, he had
to take rest. The advocate for the plaintiff informed that, draft of
evidence affidavit was and is ready and can be filed in the court.
6. Under the above circumstances, Ld. Counsel for the
plaintiff submitted that, the mother of the plaintiff is very old and
suffers from cancer and required regular medical attention. Plaintiff's
son Sudhir died 8 to10 yrs. back and younger son is in USA and
therefore, except the plaintiff and her husband, there is no one to look
after the old mother. Therefore, absence of the plaintiff and her
advocate on 8.3.2019 and 11.6.2019 was not deliberate or intentional,
but it was justified in the facts and circumstances of the case. The
plaintiff has shown sufficient cause for recalling the orders passed by
this court. It will not cause prejudice to the defendants because they
will get an opportunity to crossexamine the plaintiff. Hence, Motion
deserves to be allowed.
Ld. Counsel for the plaintiff has produced photocopy of
medical papers of the treatment of advocate for the plaintiff who has
undergone the operation.
7. The defendants no.1 and 2 have strongly opposed the
Motion in the affidavit in reply and submitted that, record clearly
reflects that the plaintiff is deliberately delaying the proceeding in the
suit and had sought adjournments on several occasions. The court had
been lenient and granted adjournments subject to costs. The reasons
stated by the plaintiff in the Motion are not making out any sufficient
ground for setting aside the orders passed by this court, as prayed in the
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Motion. The cataract operation of the advocate of the plaintiff and
medical papers in that regard are not very much disputed by the
defendants, but they have opposed the Motion on various grounds,
which are stated in the reply. It is submitted that the plaintiff has not
explained the delay day to day by giving just and cogent reasons,
therefore the delay in taking out the Motion cannot be condoned and
Motion is liable to be dismissed with costs.
8. I have gone through the record of the case and Motion as
well as affidavit in reply filed by the defendants. It can be seen from the
record that the issues in the suit were framed on 29.6.2018 and
thereafter, the matter was adjourned for plaintiff's evidence on
24.9.2018. Since then, the plaintiff had taken adjournments on one or
other grounds on 24.9.2018, 28.11.2018, 20.2.2019 and 8.3.2019 when
finally the plaintiff's evidence was closed and defendants were given
opportunity to lead their evidence. On 11.6.2019, the defendant had
filed evidence close pursis and matter was adjourned for final
arguments on 29.6.2019. Considering the facts and circumstances of the
case which are reflected on record of the proceedings, I find that, the
orders, which are sought to be set aside by the plaintiff in the present
Motion, are passed on 8.3.2019 and 11.6.2019, while present Motion is
taken out by the plaintiff on 5.7.2019. Leave granted on 3.7.2019 to
register the Motion. Thus, there is delay in taking out the Motion.
9. Considering the submissions made before the court, I am of
the view that, the grounds stated in the Motion by the plaintiff are
probable and needs due consideration. It would be in the interest of
justice if the suit is decided by giving one more chance to the plaintiff to
lead evidence so that matter can be decided on merit. However,
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considering the aspect of delay that has taken place and time involved
in the matter, I am of the opinion that, the Motion can be allowed
subject to reasonable costs to be awarded to the defendants. Hence, I
proceed to pass following order :
ORDER
Notice of Motion No.2470/2019 is hereby allowed
subject to costs in the following terms
1. Orders passed by this court dated 08.03.2019 and
11.06.2019 in Suit no.1939/2015 shall stand
recalled/set aside subject to plaintiff paying cost of Rs.
3,000/ each to defendants no. 1 and 2 as a condition
precedent.
2. If the plaintiff pays the cost amount on or before next
date, the orders dated 08.03.2019 and 11.06.2019 shall
stand recalled/ set side and evidence affidavit, which is
kept ready by the plaintiff, shall be taken on record
along with list of documents and the defendants no.1
and 2 shall be permitted to crossexamine the plaintiff.
N/M is disposed of accordingly.
(V.V. Vidwans)
Date: 25.11.2019 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 25.11.2019
Typed on : 27.11.2019
Signed by HHJ on : 28.11.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 29.11.19
TIME: 12.02 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 25.11.19
Judgment/ order signed by P.O on 28.11.19
Judgment/ order uploaded on 29.11.19
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