Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3062-19in
in Suit no. 241 of 16
MHCC010083612019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3062 OF 2019
CNR NO.MHCC010083612019
IN
SUIT NO. 241 OF 2016
Ashwin Dwarkadas Hariyani ..Plaintiff
V/s
Harish Dwarkadas Hariyani & Anr. ...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI KISHORE M. JAISWAL
(COURT ROOM NO.01)
DATE : 30th DAY OF AUGUST, 2021
Adv. More for the plaintiff present.
None for the defendants
ORAL ORDER
Perused the notice of motion which is supported by an
affidavit being executed by the original plaintiff Ashwin Dwarkadas
Hariyani. Notice of motion is opposed by filing the reply on affidavit
being executed by Harish D. Hariyani. Today the advocate for
plaintiff has paced on record written submission as per Exh.A. I have
gone through the same. Heard.
2. From the contents of the plaint it is stated that the
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2 NM 3062-19in
in Suit no. 241 of 16
plaintiff and defendant no.1 are the real brothers. The suit is for
declaration regarding agreement dated 05/04/2013 in respect of
surrender of Room no.8 , Palival Villa” Astik Astik building situated at
J.N.Road, Mulund West, Mumbai 400 080 entered into by defendant
no.1 that defendant no.2 has null and void. The plaintiff in the
present case has also claimed allotment of flat in newly constructed
building with direction to to earmark of flat in the said building. I
have gone through the roznama since the date of institution of the
suit I have also gone through the reply on affidavit to the notice of
motion. Parties to the suit were attending the Court and even the
defendant has filed written statement. As per roznama dated
17/02/2018 it shows that as the plaintiff has not tendered the
registered notice of motion and was not present for hearing on
framing of issues, therefore the suit was dismissed in default.
2. Thus, the suit was dismissed at the stage of hearing of
issues but on the same date at about 5.30pm., plaintiff has preferred
an application for restoration of suit as per Exh.5. It would be
apposite at the stage of reproduce the order below Exh.5 which reads
as “The suit is ordered to be restored, subject to payment of cost of
Rs.2000/ to be deposited by plaintiff with the office of legal aid
within 14 days from today. Adjd.for steps by plaintiff on 18.04.18.”
On going through the aforesaid order the plaintiff was ordered to pay
the costs within 14 days from 17/2/2018. However, the compliance
was not done and therefore my learned predecessor on 5/9/2018 has
removed the case from the board. It is contended on behalf of the
plaintiff that he is ready to pay the costs as per order dated
17/2/2018. The reasons as mentioned in the affidavit is that the
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in Suit no. 241 of 16
previous advocate has not appeared and followed the case and
therefore the suit was dismissed. In my considered opinion for any
mistake or omission on part of the advocate, the litigant should not
suffer. As the plaintiff is ready to comply with the order dated
17/2/2018 and considering several reasons as mentioned in the
affidavit, I am of the opinion that considering nature of the suit which
is between two real brothers, one opportunity needs to be granted to
the plaintiff to comply with the order dated 17/12/2018 in the
interest of justice. Hence, I pass the following order.
ORDER
Notice of motion no. 3062/19 is allowed to the extent
that plaintiff to comply the order i.e. by depositing the costs of
Rs.2000/(Rupees Two thousand ) with the office of Legal Aid within
two weeks from today.
Notice of motion is disposed off accordingly.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.30.08.2021 Court, Gr.Mumbai (C.R.No.01)
Dictated on : 30.08.2021
Transcribed on : 31.08.2021
Signed on : 31.08.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:30.08.2021 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 30.08.2021
JUDGMENT/ORDER signed by P.O. on 31.08.2021
JUDGEMENT/ORDER uploaded on 01.09.2021
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