Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2553/19 IN NM 1535/17 SUIT 3395/2012 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2553 of 2019
IN
NOTICE OF MOTION NO.1535 OF 2017
IN
SUMMARY SUIT NO. 3395 OF 2012
(CNR NO.: MHCC010070232019)
M/s.Laser Export Private Limited ...Plaintiff
Versus
Shri.Padamshi K. Gajra & Ors. ...Defendants
Appearances:
Advocate Mr.Yogendra Kanchan for Plaintiff.
Advocate Mr. Dharmendra Joshi for the Defendants No.1 & 3.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 16th December 2019
ORDER
1. Read the notice of motion and reply to it.
2. Heard the Ld. advocates on behalf of both the parties. Perused the
record.
3. Considering the material on record and submissions made on
behalf of the parties points arise for determination along with my
findings thereon for the reasons recorded are as under:
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NM 2553/19 IN NM 1535/17 SUIT 3395/2012 2
POINTS FINDINGS
1. Whether defendants made out
sufficient cause to set aside the
order dated 04/01/2018 as passed
in Notice of motion 1535/2017 in
summary suit No.3395/2012 by
condoning the delay?
Yes
2. What order? As per final order
REASONS
AS TO POINTS No.1 AND 2:
4. It appears that summary suit No.3395/2012 as instituted by the
plaintiff for recovery of amount was exparte decreed by the court on
01/07/2015. The defendants filed notice of motion No.1535/2017 for
setting aside the same exparte decree. It further reveals that the said
notice of motion was decided on 04/01/12018 against the defendants
and it came to be rejected. Therefore, by present notice of motion the
defendants have requested to set aside the order dated 04/01/2018
passed in the said notice of motion No.1535/2017.
5. The Ld. advocate on behalf of the defendants argued that
arguments were advanced in the notice of motion No.1535/2017. The
matter was posted for order to 23/08/2017. On 23/08/2017 as the
court was vacant, the date came to be fixed as 08/01/2018. The same
was checked by the clerk on the website of the City Civil Court.
However, while noting down the date of 08/01/2018 the matter was
posted in the diary on 08/02/2018. On 08/02/2018 when the mater
did not appear on the board, on inquiry, it was learnt that the matter
has been disposed by order dated 04/01/2018. The Ld.advocate argued
that by mistake the date was recorded by the advocate as 08/02/2018.
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NM 2553/19 IN NM 1535/17 SUIT 3395/2012 3
The order dated 04/01/2018 was passed without arguments. The
defendants have good chances of success in the original notice of
motion No.1535/2017. Therefore, he requested to set aside the order
dated 04/01/2018 in the notice of motion 1535/2017. Therefore, he
requested to allow the present notice of motion.
6. On the other hand, the Ld. advocate on behalf of the plaintiff
argued that the present notice of motion is not maintainable as the
order dated 04/01/2018 is appellable. The defendants deliberately
remained absent in the matter. Therefore, he requested to reject the
notice of motion.
7. On perusal of the record, it reveals that the then presiding officer
on 04/08/2017 heard the notice of motion 1535/2017 and posted it for
orders to 23/08/2017. However, as same presiding officer was
transferred, the present court fall vacant and no orders were passed on
23/08/2017. On same date, as per the online roznama the matter was
posted to next date as 08/01/2018. In view of the similarities of the
numericals, except the numerical of the month, it is probable that the
defendants advocate may have recorded the next date in the diary on
the board of 08/02/2018 instead of 08/01/2018. Be that as it may.
8. The physical record also reveals that on 23/08/2017 itself on
physical roznama the date was given as 01/11/2017. On 01/11/2017
the matter was further adjourned to 29/11/2017. By that time other
presiding officer taken the charge of the court. On 29/11/2017, same
presiding officer heard the advocate of the plaintiff, who also filed the
case law of the Hon’ble Supreme Court. The matter was then posted to
19/12/2017 and then to 04/01/2018 when the notice of motion
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NM 2553/19 IN NM 1535/17 SUIT 3395/2012 4
No.1535/2017 was decided and rejected. On 29/11/2017, 14/12/2017
and 04/01/2018 the defendants and their advocates were not present.
Once the date was fixed as 08/01/2018 as shown in the online roznama
it is improper to post the same on 01/11/2017 as per the physical
roznama. Thus, there is mistake on the part of the court staff to post the
date online as 08/01/2018 and physically post it on 01/11/2017. The
defendants once noted the date would have no reason subsequently to
check the status of the matter before that date. Resultantly, the
defendants had sufficient cause for non appearance on 01/11/2017,
29/11/2017, 14/12/2017 and 04/01/2018. It may be noted here that
once the presiding officer was changed, the next presiding officer ought
to have posted the matter for arguments afresh on the cause. However,
the record shows that on joining of the next presiding officer, the matter
was never posted for arguments afresh. Thus, without posting the
matter for arguments afresh it came to be decided on 04/01/2018. In
any case, once the matter was posted to 08/01/2018, no notice of
earlier date or preponement of date was given to the defendants. Thus,
for the reasons of lacunas on the part of the court machinery, the
defendants have made out sufficient cause for non appearance and to
set aside the order in the notice of motion No.1535/2017 by condoning
the delay. Since the fault is on the part of the court machinery, serious
prejudice will be caused to the defendant, if the order is not set aside.
The court has every power to rectify the mistakes caused by its own
machinery. Therefore, the application is maintainable. Hence, point
No.1 is answered in the affirmative and in answer to point No.2 order
as follows is passed.
ORDER
1. The order dated 04/01/2018 as passed in the notice of motion
No.1535/2017 is set aside and the notice of motion
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NM 2553/19 IN NM 1535/17 SUIT 3395/2012 5
No.1535/2017 be restored and be placed for arguments on
15/02/2020.
2. The notice of motion No.2553/2019 is disposed.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 16/12/2019 City Civil Court,Gr. Mumbai
Dictated on : 16/12/2019
Transcribed on : 19/12/2019
Signed on : 22/12/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09/01/2020 at 1.20p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 16/12/2019
Judgment/Order signed by P.O. on 22/12/2019
Judgment/Order uploaded on 09/01/2020
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