Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.2790/2019 ..1.. InS.C.Suit No.189/2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 2790 OF 2019
IN
S.C. SUIT NO. 189 OF 2019
CNR NO : MHCC010076622019
Mr. Vinod Shankarlal Jain, ...Plaintiff
Versus
1. Mr. Amar Dattaram Naik and Anr., ...Defendants
Appearance :
Mr. J. R. Dubey, Advocate for the Plaintiff.
Mr. Dahibavkar, Advocate for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 19TH MARCH, 2021.
ORAL ORDER
By this notice of motion the plaintiff has sought restoration
of notice of motion No. 4230/2017 dismissed for want of
prosecution by an order dated 23.04.2019 on the ground that,
when the notice of motion was called on for hearing, the plaintiff
and his advocate could not appear.
2. It is the plaintiff’s case that, he had gone to his native place
for some urgent work and fell ill. He was suffering from viral
fever and thereafter jaundice, so he could not inform his advocate
and could not appear before the Court on the date of hearing.
When he contacted his advocate after returning to Mumbai, his
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Notice of Motion No.2790/2019 ..2.. InS.C.Suit No.189/2019
advocate also informed him that, he was suffering from heart
ailments and so could not appear before the Court.
3. The defendant No. 2 has opposed the notice of motion on
the ground that, the plaintiff has come with a false story. The
notice of motion was rightly dismissed for want of prosecution as
the plaintiff was not prosecuting the same diligently.
4. Perused. Heard.
5. Proceedings of the suit indicate that, on 25.01.2019 the
notice of motion was for hearing, but his advocate and plaintiff
did not remain present. Same was the condition on 15.10.2018.
Therefore, when the notice of motion was called on for hearing
on 23.04.2019 and none appeared for the plaintiff, notice of
motion No. 4230/2017 was dismissed for want of prosecution.
6. While considering the present notice of motion, this Court
will have to consider whether the plaintiff and his advocate were
precluded from appearing before the Court due to sufficient
reasons.
7. The plaintiff has come with a case that, he was at his native
place and was suffering from physical ailments and so was unable
to appear. It is also his case that, his advocate was suffering from
heart ailments and so could not appear. No doubt the plaintiff
has not filed any documentary evidence to support such grounds
however the statement on affidavit would be enough to consider
this aspect. Proceedings further indicate that, on very next date
the present notice of motion was taken out for setting aside
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dismissal of earlier notice of motion. Thus, the plaintiff has taken
prompt steps to take out present notice of motion.
8. Considering the reasons stated in the affidavit in support of
notice of motion and that the notice of motion was taken out at
the earliest opportunity, to my mind the present notice of motion
can be allowed, so that earlier notice of motion can be heard on
merits. The inconvenience, if any, caused to the defendant No. 2
can be compensated by awarding cost. This is so as on the date of
dismissal of notice of motion the advocate for defendant No. 2
was not present and probably notice of motion could not have
been taken up for hearing. In the result, I pass following order:
ORDER
1. Notice of Motion No. 2790/2019 is made absolute
in terms of prayer Clause (a).
2. The Notice of Motion No. 4230/2017 is restored to
its original stage subject to payment of costs of
Rs.2,000/ by the plaintiff to the defendant No. 2 on
or before next date.
(AJIT N. MARE)
Judge,
Date : 19.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 19.03.2021
Transcribed on : 19.03.2021
HHJ Signed on : 22.03.2021
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Notice of Motion No.2790/2019 ..4.. InS.C.Suit No.189/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
22.03.2021 3.37 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 19.03.2021
Order signed by P. O. on 22.03.2021
Order uploaded on 22.03.2021
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