Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M No.2646/2019 in Suit No.2796/2013
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2646 OF 2019
(CNR NO.MH-CC01-007247-2019)
IN
S. C. SUIT NO. 2796 OF 2013
Smt. Aruna Sudhir Wagdhare ]
(Since deceased). ]
1(a) Sunil Sudhir Wagdhare and ]
others. ]..Plaintiffs.
V/s.
1 Mumbai Building Repairs ]
Reconstruction Board and others. ]..Defendants.
Advocate Mr. Virendra Tripathi for the plaintiffs.
Advocate Ms. Prabhu for the defendants.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 17th MARCH, 2020
ORAL ORDER
This notice of motion is taken out by the plaintiff praying
to set aside the Order dated 11.06.2019 dismissing the Notice of Motion
No.2489/2013 for want of prosecution and to restore the said Notice of
Motion to its original stage. No reply is filed by the defendants.
2 According to the plaintiffs, the original plaintiff had filed
Notice of Motion No.2489/2013 asking interim injunction against the
-- 1 of 4 --
2 N.M No.2646/2019 in Suit No.2796/2013
defendants. However, the plaintiff died and the matter was fixed for
bringing her legal representatives on record. They were accordingly,
brought on record and the plaint was amended. The matter was fixed
for filing amended copy of the plaint on record and for amended
written statement on 12.03.2019. The Court was on leave on that day
and then the matter was adjourned to 11.06.2019. On 11.06.2019, the
Notice of Motion No.2489/2013 came to be dismissed for default.
According to the plaintiff, the matter was not fixed for hearing that
Notice of Motion on 11.06.2019. The plaintiff was at his native place
and his advocate did not attend the Court because of his personal
difficulty. Under such circumstances, the Notice of Motion has been
dismissed in default. Therefore, the plaintiff prays to set aside the order
of dismissal and restore that Notice of Motion for hearing on merit.
3 Ms. Prabhu, the learned advocate for the defendants
submits that the Notice of Motion No.2489/2013 was fixed for hearing
on earlier dates. Therefore, the plaintiff was fully aware of the said
fact. The additional stage recorded in roznama to bring on record legal
representatives of the deceased plaintiff, carrying amendment and
supplying the copies of the amended plaint will not absolve the plaintiff
from his duty to argue the notice of motion. Therefore, the explanation
given by the plaintiff is not convincing . There is no just ground to set
aside the order of dismissal of Notice of Motion No.2489/2013.
4. Having heard the learned advocate for both the parties and
careful perusal of roznama, it appears that the Notice of Motion
No.2489/2013 was not fixed for hearing on 11.06.2019, though it was
earlier fixed. Secondly, the Notice of Motion No.2489/2013 was for
-- 2 of 4 --
3 N.M No.2646/2019 in Suit No.2796/2013
interim relief and it would be in the interest of justice to allow the
plaintiff to argue the Notice of Motion on its merits.
5 The plaintiff has produced on record Railway Ticket which
shows that he was out of station on the fixed date. Thus, I find that
there was sufficient cause for non-appearance of the plaintiff which has
resulted in dismissing the Notice of Motion No.2489/2013. In the
result, I hold that this Notice of Motion deserves to be made absolute by
setting aside order dismissing Notice of Motion No.2489/2013. Hence,
the order;
ORDER
Notice of Motion No.2646 of 2019 is made absolute by
setting aside the Order dated 11.06.2019 dismissing the Notice of
Motion No.2489/2013 and the said Notice of Motion is restored to its
original stage.
2 Notice of Motion No.2646 of 2019 stands disposed of
accordingly.
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: 17/03/2020. Gr. Bombay.
Dictated on : 17/03/2020
Transcribed on : 17/03/2020
Signed on : 18/03/2020
-- 3 of 4 --
4 N.M No.2646/2019 in Suit No.2796/2013
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/03/2020 At 01.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
17/03/2020
Judgment/Order signed by P.O. on 18/03/2020
Judgment/Order uploaded on 18/03/2020
-- 4 of 4 --