Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL Court AT BOMBAY
NOTICE OF MOTION NO. 3060 OF 2019
IN
SUIT NO. 2650 OF 2019
Mr. Najir Raosaheb Nadaf ]..Plaintiff.
V/s.
1. Smt. Lailabi Raosaheb Nadaf ]
and others. ]..Defendants.
Advocate Mr. Sujit S. Nikam for the plaintiff.
Advocate Mr. Noman Jafri for defendant Nos.1 to 3.
Advocate Mr. Trivedi for defendant No.5/SRA.
Advocate Mr. Praful Sawant for defendant No.6.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 30th MARCH, 2022
ORDER
The Notice of Motion is taken out for setting aside the
order dated 24/06/2019 of dismissal of the Notice of Motion No.1844
of 2019 and for restoration of the same. It is also prayed for
condonation of delay in taking out the present Notice of Motion.
2. It is the case of plaintiff that the main suit bearing Stamp
No.5512 of 2019 along with Notice of Motion of No.1844 of 2019 was
listed on the board on 24/06/2019. The learned advocate for plaintiff
was unable to attend the Court on that day as he was held up in
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another Court room in a different matter. By the time he reached this
Court for the present matter, but the matter was already called out and
next date was given. Plaintiff is working as driver on commercial heavy
vehicles and on the fixed date of this matter, he was out of Mumbai for
his work. Hence, he could not attend the Court.
3. Plaintiff has further stated that the matter was listed on
08/07/2019 when his advocate appeared in the matter and came to
know about the order passed on 24/06/2019 after going through the
Roznama. As the plaintiff is required to travel all over India and comes
to Mumbai rarely, he could not contact his advocate for filing the
present affidavit. Hence, it was prepared on 28/07/2019.
4. Plaintiff has stated that there is no deliberate or willful
default on the part of plaintiff. The present Notice of Motion is filed
immediately after getting knowledge of dismissal of the earlier Notice of
Motion. The delay caused is not deliberate or intentional. Plaintiff has
good case on merits and therefore, he has prayed for restoration of the
Notice of Motion. He has stated that no prejudice will be caused to the
defendants, if the Notice of Motion is restored.
5. Defendant No.1 has filed reply and has denied all the
contentions in the Notice of Motion. It is stated that plaintiff has not
given details of the matter as to where learned advocate was engaged
and could not attend the present matter. This matter was called and
Roznama was recorded and thereafter, the matter was adjourned. There
is nothing on record to show that plaintiff was out of Mumbai on that
day. Plaintiff even failed to remove the office objections to get the suit
registered. Plaintiff failed to tender the registered Notice of Motion and
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hence, it came to be dismissed. The Notice of Motion came to be
dismissed due to willful default of the plaintiff.
6. It is further stated that when the learned advocate for
plaintiff appeared in the Court on 24.06.2019 after adjourning the
matter, he should have noticed the Roznama recorded by the Court.
Therefore, there is no question of plaintiff getting the knowledge about
dismissal on 08/07/2019. Therefore, the present Notice of Motion is
beyond the period of limitation and deserves to be dismissed. Plaintiff
has no merits in the case and the suit and present Notice of Motion is
filed only to harass the defendants.
7. I have heard learned advocate for plaintiff and defendant
Nos.1 to 3, 5 and 6 at length.
8. Considering the Notice of Motion and reply, following
points arise for my determination and my findings to them are as stated
below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether Plaintiffs has shown sufficient
cause for condonation of delay and
restoration of Notice of Motion No. 1844 of
2019?
In the
Affirmative
2 What order? As per final order
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R E A S O N S
AS TO POINT No.1 :
9. It is the case of plaintiff that on the fixed date i.e.
24/06/2019, his learned advocate was engaged in some other Court in
another matter. Plaintiff was out of Mumbai due to his job. Therefore,
the Notice of Motion came to be dismissed. The Roznama discloses that
plaintiff failed to tender the registered Notice of Motion though the
leave was granted to the plaintiff on 07/05/2019. Therefore, it is clear
that not only because the learned advocate for plaintiff was absent, but
the registered Notice of Motion was also not tendered by the plaintiff in
the Court. It is important to note that by that time the suit also was not
registered for non-satisfaction of the office objections. This shows the
careless attitude of the plaintiff towards the litigation.
10. It is important to note that plaintiff as per his case remains
out of Mumbai due to his job and visits Mumbai once or twice in a
month. Once he has appointed learned advocate to conduct the matter,
it becomes the duty of the advocate to attend the matter regularly on
behalf of his client. Engagement of the learned advocate in another
Court cannot be a sufficient reason. He should have made alternative
arrangements for this matter also.
11. Be that as it may, it is necessary to keep in mind that no
litigant should be allowed to suffer due to the fault of the advocate.
The substantial rights of the plaintiff are involved in the matter and
they cannot be allowed to be hampered only because his learned
advocate failed to attend the matter when it was called out. It will
amount to gross injustice, if the Notice of Motion is not restored. The
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delay caused due to the conduct of plaintiff and his learned advocate
can be compensated in the terms of money.
12. It is the case of plaintiff that his learned advocate was
present in the Court after the matter was adjourned on 24/06/2019.
However, he failed to notice the Roznama and the order of dismissal of
Notice of Motion. This is again the lapse on the part of the advocate.
He could have noticed the online Roznama also on any subsequent day
before the next date. This negligence makes the plaintiff liable to pay
costs of the defendants.
13. Considering the reason that plaintiff remains out of
Mumbai due to his job most of the time, I have come to the conclusion
that the present Notice of Motion deserves to be allowed subject to
payment of heavy costs. Plaintiff had shown sufficient reason for
condonation of delay in filing the present Notice of Motion and for
restoration of Notice of Motion No. 1844 of 2019. Hence, I answer
point No. 1 in the affirmative and in answer to point No. 2, proceed to
pass following order.
O R D E R
1. Notice of Motion No. 3060 of 2019 is allowed
subject to the payment of cost Rs. 200/– each of the
defendants payable by the plaintiff.
2. The order passed by this Court on 24/06/2019
dismissing the Notice of Motion filed by the plaintiff
is revoked on payment of cost and the said Notice of
Motion is restored to its original stage on payment of
cost by the plaintiff as above.
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3. Plaintiff shall attend the registered Notice of
Motion on or before the next date.
4. Plaintiff shall bear the costs of this Notice of
Motion No. 3060 of 2019.
5. Notice of Motion No. 3060 of 2019 is disposed
of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 30.03.2022 Gr.Mumbai.
Dictated on: 30.03.2022
Typed on : 30.03.2022
Signed on : 31.03.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01.04.2022 AT 12.05 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
No.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of ProNo.uncement of
Judgment/Order
30.03.2022
Judgment/Order signed by P.O. on 31.03.2022
Judgment/Order uploaded on 01.04.2022
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