Order 1

Order Details: Notice of Motion
Pdf Text: Dt. 30.11.2021 CORAM : H.H.J. SHRI. S. D. KULKARNI ( CR. NO. 08)
SU 2385/12
(Disp.off)
Plaintiff present. His advocate absent.
Adv Mrs Rawade for defendant / MCGM present.
ORDER ON NOTICE OF MOTION NO. 2290/2018
The plaintiff has taken out this Notice of Motion to recall
the dismissal order dated 19.03.2018 and to restore the suit
No.2385/2012 at its original stage.
Perused Notice of Motion, affidavit in support thereof, the
reply filed by the defendant No.1.
Heard advocate for the plaintiff and both the defendants at
length.
It is alleged by the plaintiff that the plaintiff has filed the
suit for perpetual injunction and declaration. After filing of the
suit this court has granted interim relief in favour of the plaintiff
and matter is kept for recording evidence of the plaintiff. The
matter was adjourned regularly but the date of hearing on
12.02.2018 onwards was missing from the advocates diary of the
plaintiff. Because of the missing of the dates, the plaintiff could
not know about the date of hearing of the suit. On 17.03.2018
matter was fixed for hearing, plaintiff as well as his advocate was
not present because of not knowing the date of the hearing.
Therefore matter was kept for dismissal on 19.03.2018.
The advocate for the plaintiff noted in his diary as the
matter was listed on 08.06.2018 in morning session for hearing of
the suit. The advocate for the plaintiff not seen the matter on that
day's board. Therefore he made inquiry and came to know that the
matter was dismissed on 19.03.2018 for want of prosecution.
The advocate for the plaintiff submitted that it is a bonafide
mistake on the part of the plaintiff therefore, the suit was
dismissed. The plaintiff is not intentionally or deliberately
remained absent but, it is a purely circumstantial mistake on his
part. Therefore plaintiff prayed that the suit be restored at its
original stage by recalling the dismissal order dated 19.03.2018.
The advocate for the defendant no.1 resisted the Notice of
Motion by filing affidavit in reply on record.
It is alleged by the defendant that plaintiff has taken out this
Notice of Motion on baseless ground, misconceived facts which
totally devoid of merits. The defendant further contended that the
present Notice of Motion is not maintainable as once the suit has
been dismissed in default. This court can not reverse himself order
therefore this court have no jurisdiction to try and entertain the
present Notice of Motion.
It is further alleged by the defendant that the plaintiff is
deliberately and intentionally try to harass the defendant and filed
a baseless suit and Notice of Motion. The ground mentioned for
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the restoration of the suit are not sufficient and not on the basis of
valid reasons. Hence prayed for rejection of Notice of Motion
Perused Notice of Motion, and reply filed by the defendant
no.1. Heard all the advocates at length.
I have also gone through the roznama of the Suit
No.2385/2012. The roznama shows that on 05.07.2017 matter
was kept for order on contempt Notice of Motion No.2037/2014.
On that day contempt Notice of Motion is rejected and accordingly
disposed of. On the same day, Notice of Motion 2705/2012 is
ordered to be disposed off alongwith suit and same day issues
were framed, and matter adjourned for recording evidence of the
plaintiff. On 11.12.2017 plaintiff has filed his affidavit in
examination in chief, it is taken on record and marked at Exh.10.
And matter was adjourned for filing of documents on 12.02.2018.
On 12.02.2018, plaintiff and his advocate absent. Therefore suit is
kept for dismissal order on 17.03.2018. On the above day the
Presiding Officer nominated as mediation trainer therefore board
was discharged and matter was kept on 19.03.2018. On above
day plaintiff and his advocate were absent therefore suit is
dismissed for default. On 13.06.2018 plaintiff filed this Notice of
Motion for restoration of the suit.
On perusal of roznama of the suit till 19.03.2018 it shows
that the plaintiff or his advocate attended the matter continuously.
On the next date of framing of issue plaintiff has filed his affidavit
of examination in chief. Therefore it could not be said that
plaintiff is deliberately and intentionally remained absent to
prolong the matter. On the other hand in roznama dated
05.07.2017 my predecessor observed that defendant no.1 is absent
since long. Therefore interim protection given to the plaintiff
continued till decision of the suit.
The contention of the plaintiff that he was continuously
attended the suit but on 12.02.2018 onwards the date of hearing
is missing from the advocate diary. Therefore he is unable to
remain present on that day when suit came to be dismissed for
default. The reasons and the ground mentioned above by the
plaintiff is probable and is not found deliberate or intentional. The
plaintiff has filed the suit for perpetual injunction and declaration,
thus the civil rights of the plaintiff involved in the suit, needs to be
adjudicated on merit. For the final adjudication of the dispute in
between the parties. In my opinion suit needs to be restored at its
original stage. At the same time there is fault on the part of the
plaintiff because of it defendant has suffered a lot. Therefore it
needs to be compensated in terms of money. Considering this, I
pass the following order :
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O R D E R
1. The Notice of Motion No.2290/2018 is allowed.
2. The dismissal order dated 19.3.2018 is set aside and the
Suit No.2385/2012 be restored at its original stage subject
to cost of Rs.5,000/.
3. Plaintiff is directed to deposit the cost in D.L.S.A office
within two weeks from the date of this order.
4. Notice of Motion No.2290/2018 is disposed of
accordingly.
Judge
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