Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.230818
CNR No. MHCC010074722018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2308 OF 2018
IN
CHAMBER SUMMONS NO.389 OF 2016
SUIT NO.6545 OF 2003
(HIGH COURT SUIT NO.874 OF 2003)
Trishala Bhoijraj Karkera & Ors. ...Plaintiffs.
V/s.
Saraswati Yadav & Ors. ...Defendants.
Shantilal Hemraj Wadal & Anr. ...Applicants /Proposed
defendants.
Appearances:
Ld. Adv Kachave for the applicants.
Ld. Adv Harsha Shah for the plaintiffs.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 05th FEBRUARY, 2019
ORDER
1. This is notice of motion taken by the applicants in Chamber
Summons No.389 of 2016.
2. Applicants have taken Chamber Summons No.389 of 2016 for
including them as a defendants. The said chamber summons was
allowed on 14.08.2017, directing the plaintiff to carry out necessary
amendment in the plaint to implead applicant nos.1 to 7 in array of
defendants. The applicants do pay costs of Rs.7,000/ to the plaintiffs
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on or before 24.08.2017 and thereafter, within two weeks plaintiff to
carry out necessary amendment. Failure to comply the order of payment
of costs by the applicants, it shall result in automatic dismissal of
chamber summons and matter will proceed further in their absence by
forfeiting their rights as the applicants are not deposited costs amount.
On 26.10.2017 rights of the applicant nos.1 to 7 stands forfeited and
suit proceed. Thereafter, the present notice of motion taken by the
applicants for condoning delay in depositing amount and to comply the
order in Chamber Summons No.389 of 2016 and setting aside the order
dated 26.10.2017.
3. Applicants further contention is that because of serious illness of
his uncle because of motor accident, applicant no.1 had not asked to his
lawyer for getting certified copy and failed to fulfill the condition of
payment of costs of Rs.7,000/ to the plaintiffs. His further contention
is that he alongwith his Advocate appeared in the Court on 03.04.2018
and came to know that suit is adjourned for exparte evidence on
10.07.2018. On the same day, Advocate pointed out that because of
non payment of costs of Rs.7,000/ to the plaintiffs, suit is proceeded
expartee then, he applied for certified copy and after getting certified
copy, he filed this present notice of motion. His contention is that if he
is not allowed to condone delay and to deposit amount, he will suffer
irreparable loss.
4. The plaintiff objected this chamber summons and contending that
only with malafied intention to prolong the hearing of the suit and to
harass the plaintiff, the applicants have taken notice of motion. It
further contended that conditional order was passed on 14.08.2017 and
failure to comply the said order, the rights of the applicants were
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forfeited automatically. With this, prayed for dismissal of notice of
motion.
5. I have heard both the parties.
6. I perused order in Chamber Summons No.389 of 2016, chamber
summons was allowed on costs of Rs.7,000/ to the plaintiffs on or
before 24.08.2017 and failure to comply the order of payment of costs
by the applicants, it shall result into automatic dismissal of chamber
summons. The applicants have not paid the costs to the plaintiffs and
not complied the order in Chamber Summons No.389 of 2016
automatically chamber summons dismissed therefore, the applicants
have taken present notice of motion for setting aside the order of
roznama dated 26.10.2017 allowing them to deposit costs. The
applicants have produced medical certificate to shown one Shantilal
Wadala, was bedridden. I find that in the interest of justice, order
dated 26.10.2017 is to be set aside and if order is not set aside then, it
will cause injustice to the applicants. However, plaintiffs should be
compensated by applicants to pay costs of Rs.3,000/ of this notice of
motion to the plaintiffs as well as the costs in Chamber Summons
no.389 of 2016. With this, notice of motion is allowed and accordingly I
proceed to pass the following order :
O R D E R
1. Notice of Motion No.2308 of 2018 is allowed.
2. Order dated 26.10.2017 for non compliance of order in Chamber
Summons No.389 of 2016 chamber summons automatically dismissed is
set aside on costs of Rs.3,000/ to the plaintiffs in addition to costs of
Rs.7,000/ order in Chamber Summons No.389 of 2016. The suit is of
2003 and it is for hearing. The applicants have to deposit costs in
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Chamber Summons no.389 of 2016 and costs in present notice of
motion within eight days and after depositing costs, the plaintiff are to
carry out amendment in the plaint.
( KALPANA S. HORE )
Judge,
Dated : 05/02/2019 City Civil Court, Gr. Mumbai
Dictated on : 05/02/2019
Transcribed on : 05/02/2019
Signed on : 05/02/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
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06.02.2019 12.42 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
05.02.2019
JUDGEMENT /ORDER signed by
P.O. on
05.02.2019
JUDGEMENT /ORDER uploaded
on
06.02.2019
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