Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2272/18 in Suit 7369/03
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.2272/2018
IN
S.C. SUIT NO. 7369/2003
Jasmin Bhogilal Shah ..Plaintiff
V/s.
Cinevistas Ltd. & others ..Defendants
Appearance:
Adv. Mr. Vivek Vashi for plaintiff.
Adv. Mr. Vivek Midha for defendant no.1.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 23.7.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiff for
condonation of delay of 3512 days in taking out the N/M and for
setting aside the order dated 1.10.2008 passed by Ld. Prothonotary and
Sr. Master of High Court (original Side) with a prayer that, it may be
recalled or set aside. Alternatively it is prayed that the suit against the
defendants no.1,3 to 7 may be restored after setting aside above order
and either it be transferred to the stage of undefended/No WS order
against them or the plaintiff may be allowed to serve the defendants
no.1,3 to 7 through fresh writ of summons. The notice of motion is
supported by an affidavit of Jasmin B. Shah and copies of order and
documents vide Exhs. A to E. The defendants have appeared and
contested the notice of motion by filing affidavit in reply. I have perused
the same.
2. I have heard Ld. Counsels for both sides.
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3. Ld. Counsel for the plaintiff submitted that there are total
seven defendants present in the suit bearing no. 3769/03. Ld. Adv.Mr.
Anil Memon was appearing for defendants no.1 and 2 and S.J. Jain &
Co. had appeared on behalf of defendants no.3 and 4, as per copy of
order passed by Hon'ble Justice Shri Vazifdar dated 28.11.2003 and
Vakalatnama filed on behalf of S.J. Jain & Co. with covering letter vide
Exhs.A and B. Govt. Pleader had filed his appearance on 5.12.2003 on
behalf of defendants no.5 to 7 vide Exh.C.
4. Ld.Counsel for the plaintiff further submitted that, the
impugned order dated 1.10.2008 came to be passed by Ld.
Prothonatory and Sr. Mastser, High Court of Bombay and dismissed the
suit and transferred the suit to the list of undefended against the
unserved defendants i.e. against defendants no.1,3 to 7 under Rule 87
of the Bombay High Court (OS) for the want of service of writ of
summons vide Exh.D. Ld. Counsel for the plaintiff submitted that,
division Bench of Hon'ble Bombay High Court in the case of Meena
Ramesh Lulla & Ors V/s. Shri Omprakash A. Alreja & Ors
(MANU/MH/1841/2011) dated 21.9.2011 has held that once party
files Vakalatnama or appearance in the matter there is no need to issue
writ of summons. Copy of said decision published in the Manupatra is
filed at Exh.E. Under the above circumstances it was submitted that, the
impugned order dated 1.10.2018 needs to be recalled and it be set
aside. Since there was apperance on bebalf of the defendant before
High Court and now the matter has been transferred to this court in
view of change in jurisdiction the delay has taken place in taking out
the notice of motion. The delay though appears to be substantial, is
technical in nature and not intentional. It deserves to be condoned in
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the interest of justice.
5. Ld. Counsel for the defendants has opposed the notice of
motion and relied on the affidavit in reply and submitted that there is
no substance in the grounds stated in the notice of motion and the same
is liable to be dismissed.
6. It is submitted that, the plaintiff has filed the present
motion by suppressing material facts and has not come with clean
hands and that he has suppressed relevant facts from the Court. It is
further submitted that, the plaintiff is guity of “SuppressioVeri and
Suggestio Falsie” against defendant no.1. Ld. Counsel for the
defendants submitted that as per Rule 87 of Bombay High Court Rules
(OS), it is mandatory for the plaintiff to serve defendants with writ of
summons and therefore, the impugned order passed by Ld.
Prothonatory & Sr. Master of Bombay High Court is legal, proper and
calls for no interference. Hence, the N/M is liable to be dismissed with
cost on merits as well as on the count of huge delay, which is not
satisfactorily explained.
7. I have gone through the order passed by Ld. Prothonotory
& Sr. Master. Said order has been passed against defendants no.1,3 to
7 under Rule 87 of the said Rules on 1.10.2008. However, subsequently
in the decision in the case of Meena Ramesh Lulla & Ors V/s. Shri
Omprakash A. Alreja & Ors (supra) on 21.9.2011, the Division Bench
of Hon'ble Bombay High Court while deciding an appeal which was
filed against the order dismissing the notice of motion, has held that
Ruule 84 of the above said rules required proof of the service of
summons, unless court shall otherwise order, service of summons to
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appear and answer shall be proved by Vakalatnama having been filed or
when no Vakalatnama is filed by evidence showing that summons was
served in the manner provided by the CPC. In that case the delay of
three years in filing the N/M was properly explained. Therefore, the
Hon'ble High Court has condoned the delay holding that in view of
appearance of the advocate on behalf of defendant, the service
appeared to have been effected and therefore, there was deemed
service. Considering the ratio of the above authority in which Hon'ble
High Court has placed reliance on the observations made by apex Court
in the case of Charles K. Skaria and others V/s. Dr. C. Mathew and
others (AIR 1980 SC 1230), wherein it is observed that, 'make
procedure not the handmaid but the mistress and form not as subservient
to substance but as superior to the essence'. In the present case also,
there has been substantial delay of 3512 days in taking out N/M,
however there has been transfer of case from Hon'ble High Court to this
Court in view of change in jurisdiction and in paras 8 and 10, the
plaintiff has explained the delay, which is satisfactory. Under the above
circumstances, I am of the view that the notice of motion deserves to be
allowed, in the interest of justice, in following terms:
ORDER
1. N/M No.2272/2018 is hereby allowed.
2. Order passed by Ld. Prothonotary & Senior Master,
Bombay High Court(OS), Mumbai dated 1.10.2008
dismissing the suit against defendants no.1,3 to 7 is
hereby set aside by condoning the delay as prayed
in the N/M.
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3. The Suit as against defendants no.1,3 to 7 is
restored and the plaintiff is granted liberty to serve
the defendants no.1,3 to 7 through fresh writ of
summons.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date:23.7.2019 Gr. Bombay (C.R. 03)
Dictated on :23.7.2019
Typed on : 24.7.2019
Signed by HHJ on : 25.7.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 25.7.19
TIME: 4.50 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 23.7.19
Judgment/ order signed by P.O on 25.7.19
Judgment/ order uploaded on 25.7.19
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