Final Order 1

Order Details: Notice of Motion
Pdf Text: (Disposed) Suit No.4375/2009 Order in N/M No. 2507 of 2019
MHCC010068842019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2507 OF 2019.
IN
Suit No.4375 of 2009.
(High Court Suit No. 2606 of 2009)
Chandrakant V. Khara … Applicant (Plaintiff)
In the matter between
Chandrakant V. Khara. …Plaintiff
V/s.
Kapoor Glass (India) Pvt. Ltd. ...Defendant
Appearance:
Adv. Ms.Divya Shah for Plaintiff.
Adv. Mr. Prashant P. Prabhu for Defendant.
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR (C.R.No.59)
DATE : 01st JULY, 2022
ORDER
Plaintiff has taken out this Notice of Motion with prayer to set
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aside the order dated 16.02.2019 and to restore the suit No. 4375 of
2009 on the files of the Court.
2. Plaintiff contends that the suit was filed before the Hon'ble
Bombay High Court and thereafter it was transferred to this Court.
Issues were framed on 04.07.2018. Plaintiff filed evidence affidavit and
documents on 07.01.2015. Since 3.12.2018, advocate for plaintiff lost
the track of the matter. On inquiry in the month of June 2019, made
with the advocate, it was disclosed that suit came to be dismissed on
16.02.2019. Plaintiff has undergone heart operation and he was
advised bed rest. Therefore, he could not attend the dates of hearing in
the Courts. Number of irregularities have taken place in the matter and
written statement of the defendant is taken on record without setting
aside the order proceeding the suit undefended. Plaintiff has good case
on merits. Hence, it is prayed that order dated 16.02.2019 to set aside
and the suit be restored.
3. Advocate for the defendant contested the Notice of Motion
on the ground that there are lapses on the part of the plaintiff and same
cannot be cured under the provision of the Code of Civil Procedure (in
short 'CPC'). Plaintiff has made false and frivolous statement in the
affidavit only to harass the defendant. Plaintiff has not filed documents
in support of his statement in the affidavit. Evidence is filed prior to
framing of issues and that cannot be a ground to set aside the dismissal
order. Suit is rightly dismissed. No reason is even given to condone the
delay. Therefore, delay cannot be condoned and the Notice of Motion
is liable to be dismissed.
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4. Heard Ld. Adv Divya Shah for the plaintiff and Ld. Adv
Prashant Prabhu for the defendant.
5. Following points arise for my determination to which I
record my findings for the reasons to follow:
Sr.No. FINDINGS REASONS
1. Whether order dated
16.02.2019 in disposed of Suit
No. 4375 of 2009 is liable to be
set aside and the suit deserves
to be restored on the files?
Yes
2. What order? Notice of Motion
is allowed, subject
to costs.
REASONS
As to Point No. 1 & 3.
6. Ld. Advocate for the plaintiff submitted that plaintiff's
operation is performed in 2016. Earlier thereto he used to attain the
Court regularly. There are no malafides on the part of the plaintiff. The
Notice of Motion is taken out within the period of limitation from the
date of knowledge of dismissal of the suit. The cause of dismissal of the
suit is absence of the advocate. ‘Sufficient cause’ under Section 5 of the
Limitation Act requires to be construed liberally, while condoning the
delay and appropriate costs may be imposed upon the plaintiff. The
plaintiff had already adduced the evidence, before dismissal of suit.
Therefore, he prayed that Notice of Motion be allowed. She relied upon
following judgments:
a) Collector Land Acquisition, Anantnag and Anr Vs. Mst. Katiji and Ors,
R 1988 SC 897(7)
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b) Ram Nath Sao @ Ram Nath Sahu Vs. Gobardhan Sao and Ors,
Appeal (Civil) 1704 of 2002 (SC).
7. Per contra, Ld. Advocate for the defendant submits that
defendant filed written statement in 2010. Suit is dismissed on
16.02.2019 and the Notice of Motion is taken out on 08.07.2019.
Plaintiff has not explained the delay for taking out the Notice of Motion.
Even earlier delay is not explained. Absence of the defendant on the
dates of hearing cannot give any benefit to the plaintiff. The plaintiff
had filed evidence before framing of the issues. Therefore, the same
cannot be considered as the ground to set aside the order of dismissal.
The plaintiff is trying to put blame upon his advocate and this cannot be
accepted. Plaintiff was not suffering from any physical ailment at the
relevant time, therefore, Notice of Motion is liable to be dismissed.
8. Perused the Notice of Motion, supporting affidavit, affidavit
in reply, rejoinder and record of the suit. The suit was initially filed
before the Hon'ble Bombay High Court in 2012. Thereafter it was
transferred to this Court. Record shows that when the suit was pending
for framing of issues on 07.01.2015, plaintiff tendered evidence
affidavit and list of documents and the same were taken on record at
Exhs. 4 and 5 respectively. Thereafter on 04.07.2018, issues are framed
and the matter came to be posted for evidence of the plaintiff.
Ultimately, on 16.02.2019 the suit came to be dismissed on the ground
that the plaintiff failed to adduce evidence despite of availing
opportunity.
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9. Plaintiff claims that he was operated in 2016 and because
of physical ailments, he could not remain present on the dates of
hearing. The documents annexed with the affidavit in support of the
Notice of Motion and Rejoinder do indicate that in 2016 plaintiff has
undergone surgery. Along with the Rejoinder, plaintiff has produced the
medical certificates dated 13/07/2017, 28/11/2018, 24/01/2019 and
05/02/2019. These documents indicate that the plaintiff was suffering
from Chronic Obstructive Abnormality and was under treatment for
COA. These documents don’t show that the plaintiff was bedridden or
was physically incapable to attend the Court. However, these
nevertheless suggest that the plaintiff was suffering from physical
ailment.
10. Another ground pleaded by the plaintiff is that his advocate
lost the track of the suit. Roznama of the suit indicates that the
advocate for the plaintiff attended the matter on 08.10.2018 which was
the first date of the hearing in the suit. Thereafter on 03.12.2018 and
16.02.2019 advocate for the plaintiff was absent. The above statement
is made by the plaintiff on oath and cannot be altogether ignored.
11. It is pertinent to note that vide order dated 16.02.2019, the
suit came to be dismissed for the reason that the plaintiff failed to
adduce evidence despite of giving opportunities. However, record of the
suit shows that the plaintiff had filed evidence affidavit and documents
in the year 2015 itself. It is seen that the evidence was tendered by the
plaintiff before faming issues, despite the Court pointing out that issues
were not framed. However, the fact remains that it was taken on record
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by the Court.
12. Though it is apparent that the fact that the evidence of the
plaintiff was already on record is not pointed out to the Court when the
suit was under the caption of evidence of the plaintiff, and though the
plaintiff was absent on the day when the suit was dismissed, in view of
the specific ground for dismissal of the suit, this circumstance, in my
considered view, cannot be overlooked and weighs in favour of the
plaintiff.
13. Advocate for the defendant submits that there is delay and
it is not properly explained by the plaintiff. However, it is specific case
of the plaintiff that he got knowledge of dismissal of the suit in June
2019. The Notice of Motion is taken out in July 2019. There is nothing
on record to indicate that the plaintiff had knowledge of dismissal of the
suit at any earlier point of time. Therefore, from the date of knowledge,
this Notice of Motion is filed within the period of limitation.
14 In Collector Land Acquisition, Anantnag and Anr Vs. Mst.
Katiji and Ors, (Supra), the Hon’ble Apex Court held as under:
"Any appeal or any application, other than an application under any
of the provisions of Order XXI of the Code of Civil Procedure, 1908. may
be admitted after the prescribed period if the appellant or the applicant
satisfies the court that he had sufficient cause for not preferring the appeal
or making the application within such period."
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being
thrown out at the very threshold and cause of justice being defeated. As
against this when delay is con- doned the highest that can happen is that a
cause would be decided on merits after hearing the parties.
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3. "Every day's delay must be explained" does not mean that a pedantic
approach should be made. Why not every hour's delay, every second's
delay? The doctrine must be applied in a rational common sense pragmatic
manner.
4. When substantial justice and technical considerations are pitted against
each other, cause of substantial justice deserves to be preferred for the
other side cannot claim to have vested right in injustice being done
because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on
account of culpable negligence, or on account of mala fides. A litigant
does not stand to benefit by resorting to delay. In fact he runs a serious
risk.
6. It must be grasped that judiciary is respected not on account of its power
to legalize injustice on technical grounds but because it is capable of
removing injustice and is expected to do so.
15. In Ram Nath Sao @ Ram Nath Sahu Vs. Gobardhan Sao
and Ors, (Supra), the Hon’ble Apex Court observed thus:
The expression 'sufficient cause' within the meaning of Section 5 of the
Limitation Act, 1963 (hereinafter referred to as 'the Act'), Order 22 Rule 9
of the Code of Civil Procedure (hereinafter referred to as 'the Code") as
well as similar other provisions and the ambit of exercise of powers
thereunder have been subject matter of consideration before this Court on
numerous occasions. In the case of The State of West Bengal V.
Administrator, Howrah Municipality and others (1972) 1 Supreme Court
Cases 366, while considering scope of the expression 'sufficient cause'
within the meaning of Section 5of the Act, this Court laid down that the
said expression should receive a liberal construction so as to advance
substantial justice when no negligence or inaction or want of bona fide is
imputable to a party.
16. There is some delay on the part of the plaintiff in attending
the suit when the suit was called on for hearing. However, in view of
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the above observations of the Hon’ble Supreme Court, on the ground of
delay alone, it will not be proper to reject this Notice of Motion,
especially when the evidence of the plaintiff was already on record. The
delay caused by the plaintiff in attending the matter can be
compensated by imposing suitable costs. In the above circumstances,
the Notice of Motion deserves to be allowed subject to costs. In the
result, point No.1 is answered in the affirmative and following order is
passed
ORDER
1. Notice of Motion No. 2507 of 2019 is allowed.
2. Order dated 16.02.2019 in Suit No.4375 of 2009 is set
aside and the suit is restored to the files subject to costs of
Rs.5,000/ (Rs. Five Thousand Only) to be deposited by the
plaintiff with DLSA, Mumbai.
3.. Plaintiff shall deposit the above costs within four weeks.
4. After the compliance of above costs, the Suit No.4375 of
2009 be restored under its original caption.
5. Notice of Motion No.4375 of 2019 is disposed of
accordingly.
(SHRI S. B. PAWAR )
Judge
Dt.:01/07/2022 City Civil Court, Gr.Mumbai
Declared on : 01.07.2022
Dictated on : 01.07.2022
Transcribed on : 01.07.2022
Checked & Signed on:
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.07.2022 at 12.30p.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 01.07.2022.
Order signed by P.O. on 01.07.2022
order uploaded on 13.07.2022
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