Final Order 1

Order Details: Notice of Motion
Pdf Text: 16.07.2026
Sr. No.43
CORAM : H. H. J. P. P. KULKARNI, City Civil Court,
Mazgaon, Mumbai, Judge (C. R. No. 83).
NM 2415/18
(IN DISPOSED
OF SUIT NO.
9070/93)
Adv. S. D. Bhovad for applicant/plaintiff is present.
Adv. Kush Lahankar i/b FF and Asso for respondent/defendant
No.08 is present.
kept back
Later on at 01.00 p.m
Same appearance for respondent/defendant No.08.
Heard argument of Adv for respondent/defendant No.08.
ORDER BELOW NM NO.2415/2018
Plaintiff moved this notice of motion with a prayer to
condone delay caused for making an application for setting aside
order of dismissal dt.16.12.2017 passed in respect of Suit
No.9070/1993. Notice of motion is supported by an affidavit.
Plaintiff filed written notes of argument at Exh.10. None of the
respondent filed reply to notice of motion. However, today Ld. Adv.
for respondent No.08 briefly argued on NM and strongly objected.
It is contention of plaintiff that suit was originally filed in the
Hon’ble Bombay High Court. It was then transferred to City Civil
Court due to enhancement of pecuniary jurisdiction. Plaintiff
submits that suit was dismissed due to non-co-operation of earlier
advocate. As per plaintiff it took time for plaintiff to collect the
necessary copy of dismissal order. Therefore, plaintiff prayed that
order of dismissal of suit may be set aside by condoning delay.
Plaintiff relied on judgment in the Case of Rafiq and Anr. V/s.
Munshilal and Anr reported in 1981 SCC online SC 222.
I have gone through record and proceeding. Initially suit was
filed in the year 1993. So when the suit was dismissed i.e on
16.12.2017, it was 24 years old suit. Even if it was so plaintiffs had
not taken diligent steps. Plaintiffs slept over their right. Plaintiffs
were not at all concerned about age of the suit nor with a fact that
they were not diligent while conducting the suit. Rather record
shows that on 17.03.2015 issues were framed. But for almost 2
years plaintiff has not tendered evidence. So rightly suit was
dismissed.
It appears plaintiff is in search of good reason for
condonation of delay and because of that plaintiff is blaming its
earlier advocate. In the above referred judgment it is observed that
parties should not suffer due to mistake of advocate. However,
plaintiff no where explained that what steps plaintiff took to offer
evidence in a 24 years old matter. It was duty of plaintiff to be in
contact with his advocate and pursue the matter. Plaintiffs are not
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NM 2415/18
(IN DISPOSED
OF SUIT NO.
9070/93)
diligent while doing so. Therefore, only by blaming erstwhile
advocate plaintiffs cannot exonerate from their liability.
Thus grounds are not satisfactory to condone delay as per
Article 122 of Limitation Act. Notice of motion is devoid of merit.
Hence, following order is passed -
ORDER
1. Notice of motion No.2415/2018 is dismissed.
2. Notice of motion is disposed of and it shall form part of R and P
of the suit.
2. R and P of Suit No.9070/1993 be sent back to record room.
Judge
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