Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO.2981/2019
MHCC010081672019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2981 OF 2019
IN
S.C.SUIT NO.2324 OF 2012
Avgadshing Bhairusingh Parmar. … Plaintiff.
Versus
Trilochan Udaynath Samantara
and others ...Defendants
Advocates
Ajay Thavare for the plaintiff.
Deepa Kamat for defendant nos.1 and 2.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
COURT NO.2
DATED : 5th April, 2022.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of the plaintiff for restoration of the suit and setting aside
dismissal order dated 24.07.2019. Perused the notice of motion, reply of
defendant no.1 and 2 and proceedings of the case.
2. Suit is dismissed in default on 24.07.2019. Contention of
advocate for the plaintiff is that on that day, plaintiff could not attend
the Court in time due to irregular train timings and he reached the
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ORDER ..2.. NM NO.2981/2019
Court late as he came from Dombivali and as there was rain. By the
time plaintiff reached the Court, matter was called out and suit was
dismissed in default and accordingly notice of motion no. 4274/2017
was also dismissed. Plaintiff has good case on merits. Plaintiff filed the
present notice of motion within limitation. Hence, he prayed for
allowing the notice of motion.
3. Contention of advocate for defendant no.1 and 2 is that plaintiff
was absent on many dates, therefore suit was rightly dismissed by the
Court. Hence prayed for dismissal of notice of motion. Alternatively
advocate for defendant no.1 and 2 submitted that if this Court is
allowing the present notice of motion with costs then plaintiff be
directed to file his evidence..
4. From perusal of record, it appears that the plaintiff had taken
out notice of motion no.4274/2017 on 27.11.2017. On 01.11.2018, this
Court passed order that said notice of motion be heard along with the
suit and on the same day case was proceeded without written statement
of defendant no.2. On 16.04.2019 issues are framed at Exh.10. Case
was fixed for evidence of the plaintiff. On 02.07.2019, heavy rain
reported hence matter was adjourned to 24.07.2019. On 24.07.2019, as
the plaintiff and his advocate remained absent, suit is dismissed in
default and therefore notice of motion no.4274/2017 is also dismissed
in default. On 30.07.2019, the plaintiff tendered present notice of
motion. Hence the notice of motion is within limitation.
5. As per the roznama, on 02.07.2019, heavy rains reported hence
matter was adjourned to 24.07.2019 but on 24.07.2019, heavy rains
not reported. Plaintiff and his advocate were not regularly attending the
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ORDER ..3.. NM NO.2981/2019
Court. Hence contention of the plaintiff that due to heavy rains and
irregular train timing, he could not attend the Court in time on
24.07.2019 and reached late to the Court is not reasonable. Plaintiff is
not vigilantly prosecuting the suit though the case was fixed for his
evidence. Suit is for permanent injunction to restrain defendants from
disturbing possession of the plaintiff over the suit shop. Considering the
nature of suit and the fact that present notice of motion is filed within
limitation, it can be allowed. However the fact cannot be ignored that
the plaintiff is not vigilant in prosecuting the suit. Hence notice of
motion is liable to be allowed subject to costs. In the result, following
order.
ORDER
1. Notice of Motion No.2981/2019 is allowed subject to cost of
Rs.5,000/- to be paid by the plaintiff with District legal Services
Authority within one month.
2. After payment of cost, Suit no.2324/2012 and Notice of Motion
No.4274/2017 be restored to its original position.
3. Plaintiff is directed to issue notice to defendants informing them
about restoration of the suit.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 05.04.2022
Typed on : 05.04.2022
HHJ signed on : 05.04.2022
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ORDER ..4.. NM NO.2981/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 05.04.2022, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
05.04.2022
JUDGMENT/ORDER signed by P.O.
on
05.04.2022
JUDGMENT/ORDER uploaded on 05.04.2022
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