Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2944/19 in Suit 7306/96
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2944/2019
(CNR No.MHCC010080912019)
IN
S.C. SUIT NO.7306/1996
(H.C Suit No. 242/1996)
Mr. Jayesh Digamber Padgaonkar ...Plaintiff
Versus
1. Prakash Prabhu Pandit,
2. Jaswant C. Raval ...Defendants
Appearances :
Adv. Mrs. Swati P. Gautam for plaintiff.
Adv. Mr. Tejas Agarwal a/w Adv. Mr Varun Nair i/b IC Legal for
defendant no.1.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No.: 03.
Date : 06.10.2021.
ORDER
1. The plaintiff has preferred instant Notice of Motion for
setting aside order dated 21.6.2014, by which the suit was dismissed for
nonprosecution.
2. It is contended by the plaintiff that, he has filed instant suit
for damages and compensation to the tune of Rs.40,00,000/ along with
interest @ 18% p.a. to be payable by the defendant for causing injury to
his eye.
3. It is further contended that, initially, the plaintiff engaged
one advocate namely Mr. Morvankar. During pendency of the present
suit before the Hon'ble high Court, the advocate has expired in the year
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1997 and thereafter, he has engaged another advocate Mr. Anil Rege.
4. It is contended that, in the year 2012, present matter was
transferred from Hon'ble High Court to this court but it was not
informed to him by his advocate. The plaintiff tried to contact him on
number of occasions, but in vain. The plaintiff submitted that, he was
not aware about whereabouts of Adv. Mr. Rege. In the year 2018, he
visited the last known address of the advocate, but he could not be
found there. Thereafter, from reliable source he came to know that Adv.
Mr Rege also expired in the year 2018. Therefore, he could not get
update about the status of the suit.
5. It is further contended that, over the last few years he has
assumed that his Advocate will update him with the status of the
present suit, but due to death of the advocate neither he nor himself
could keep track of the present suit.
6. It is contended that, in February 2019, when the plaintiff
visited the High Court website, he came to know that present suit is
transferred to this court. Therefore, he immediately contacted Adv. Mrs.
Swati Gautam to whom he was introduced by one of the society
members. He entrusted the brief to her and requested to find out exact
status of the present suit. On 8.4.2019, his advocate informed him that
the suit was dismissed for default on 21.6.2014. Thereafter, the
plaintiff's advocate tried to obtain certified copy of the order on
15.4.2019.
7. It is contended that, as the plaintiff had lost his vision of
one eye, it is not practically possible for him to travel at long distance
without assistance of someone. Therefore, considerable time has gone
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thereafter. Thus, it is contended that, due to inadvertence and lack of
knowledge, the plaintiff could not follow up the status of the present
suit. Earlier advocate Mr Anil Rege failed to inform him about the
status of the present case. Thus, due to the aforesaid reasons, the delay
has been caused for preferring instant Motion, same may be condoned
and suit be restored.
8. The defendant opposed the Motion by filing say. It is
contended by the defendant that, the plaintiff has failed to explain the
delay of more than five years. No valid or reasonable justification is
given by the plaintiff. Hence, defendant prayed for dismissal of the
Motion.
9. Heard both sides. I have perused the Motion, reply and
Roznama. It is vehemently argued by the plaintiff that, due to
negligence of his advocate, he could keep track of the matter. Even after
transfer of the matter, no notices were issued upon the plaintiff. The
plaintiff is having good case on merit as well as law. The reasons
assigned by the plaintiff are sufficient to condone the delay.
10. Per contra, Ld Advocate for the defendant argued that, the
plaintiff is negligent in proceeding with the suit. In fact, there is delay of
almost 6 to 7 years, which has not been explained by the plaintiff. The
plaintiff could have checked the status of the present suit prior to
February 2019. There was no one to prevent him from doing so. Thus,
there is absolutely no explanation put forth by the plaintiff to condone
the delay.
11. In support of his submission, Ld Advocate for the defendant
relied on the order dated 24.1.2020 passed by Hon'ble High Court in
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the case of CVS Infrastructure Pvt Ltd. V/s. M/s. Hazel Mercantile
Ltd. (Notice of Motion No.1272/2019 in Commercial Summary Suit
No.94/2014), decided on 10.1.2020.
12. I have perused the aforesaid judgment. In the aforesaid
judgment, suit of the plaintiff was dismissed not only once but thrice.
The Hon'ble High Court observed that, the conduct of the plaintiff was
so negligent that he does not deserve to restoration of the suit. I am of
the view that, the condonation of delay depends on the facts and
circumstances of each case. After perusal of the Roznama of the
proceeding, it appears to me that, the plaintiff was duly represented by
Adv. Mr. Anil Rege before the Hon'ble High Court. The matter was
transferred to this court on 5.11.2012. I could not find any notice
issued to the parties. Moreover, the plaintiff made a statement on oath
that he was totally dependent upon his advocate. But in the year 2018,
he was expired.
13. In such situation, I am of the view that, the litigants are
putting faith on their advocates, then it is the responsibility of the
Advocate to keep them informed about status of the proceeding. On
perusal of the medical reports of the plaintiff, it appears that, he has
lost vision of one eye. That also causes hindrance in pursuing regular
affairs of life. Thus, I am of the view that, the plaintiff gave sufficient
reasons to condone the delay. However, the inconvenience caused to
the defendant can be compensated by awarding reasonable costs. Thus,
I proceed to pass following order :
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ORDER
1. Notice of Motion No. 2944/2019 is hereby allowed in terms of
prayer clauses(a) to (c), subject to payment of costs of Rs.5,000/
to the defendant.
2. The order dated 21.6.2014 is hereby recalled.
3. The Suit to restore its original file.
4. Parties to bear their own costs.
5. In view of above, the Notice of Motion is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 6.10.2021 Greater Bombay.
Dictated on : 6.10.2021
Typed on : 7.10.2021
Draft Submitted on : 7.10.2021
Signed on : 8.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
8.10.2021, at 3 p.m (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 6.10.2021
JUDGMENT/ORDER signed by P.O. on 8/10/2021
JUDGMENT/ORDER uploaded on 8/10/2021
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