Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3080/2019 ..1..
CNR No.MHCC010084152019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3080 OF 2019
IN
NOTICE OF MOTION NO.2104 OF 2017
IN
SUIT NO.6795 OF 2001
(High Court Suit No.248 of 2001)
Shri Balgovind Rajaram Shukla .. Plaintiff
Versus
Om Prakash Chunilal Dubey and another .. Defendants
Mr. Jitendra Gor, advocate for plaintiff
Mr. S. H. Singh, advocate for defendant No.1
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 30th November, 2019
ORAL ORDER
Notice of motion is taken out by applicant i.e. defendant No.1
in disposed off Suit No.6795 of 2001 making prayer to set aside order
dated 25.06.2019 whereby notice of motion No.2104 of 2017 was
dismissed in default and also made prayer to restore said notice of
motion on file.
2. It is the contention of defendant No.1 that he along with
defendant No.2 have taken out notice of motion No.2104 of 2017 for
setting aside ex.parte decree dated 22.07.2014 passed in Suit No.6795
of 2001. Defendant No.1 was very regular in attending said notice of
motion and interested to contest said proceeding. It is further
contended that defendant No.1 is sugar patient and due to which his
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eyesight has become very weak. On 22.06.2019 he was under
treatment of his doctor who advised him to take complete rest for 10
days as he was suffering from hypertension. He could not contact his
advocate due to his illness and failed to inform him about next date.
His advocate was busy in some other Court therefore he could not make
his appearance in the present matter on 25.06.2019. Consequently,
impugned order was passed. It is further contended that he was not
negligent and there was no deliberate intention on his part for not
appearing in the matter when it was called for hearing. Therefore, in
the interest of justice defendant No.1 made prayer in above terms.
3. Plaintiff opposed notice of motion by filing affidavit in reply and
contended that defendant No.1 has not specified his line of treatment.
He and his advocate failed to remain present when matter was called
for hearing and notice of motion is not supported by any documents.
Accordingly, he prayed for dismissal of notice of motion.
4. Defendant No.1 filed rejoinder to the reply of plaintiff and
contended that his advocate did not attend that matter because he was
busy in final argument of Appeal No.144 of 2010 in Small Causes Court
and prayed to allow notice of motion.
5. Perused notice of motion, affidavit in support of it, reply of
plaintiff, rejoinder of defendant No.1 and relevant roznamas.
6. Defendant No.1 has filed medical certificate showing that he was
suffering from hypertension from 22.06.2019 and he was advised to
take complete rest for 10 days. Thus, his contention on affirmation that
he was suffering from hypertension on 22.06.2019 and advised to take
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complete rest for 10 days by the doctor is supported by medical
certificate. There is no reason to disbelieve his statement on solemn
affirmation when same is corroborated by medical certificate. He has
also stated that because of his illness he could not convey to his
advocate about the date and his advocate was busy in final argument
matter in Small Causes Court. So, his advocate also could not attend
said matter on 25.06.2019. There is no reason to discard his statement
in that regard. Defendant No.1 has brought material to show that his
illness prevented him from attending the Court on 25.06.2019 in notice
of motion No.2104 of 2017 and engagement of his counsel in
proceeding before Small Causes Court constrained him not to attend
proceeding in said notice of motion on that date. In my view reason
assigned by defendant No.1 is sufficient to set aside impugned order
dated 25.06.2019 passed against him in notice of motion No.2104 of
2017. Therefore, I am inclined to allow present notice of motion
subject to imposition of certain costs upon defendant No.1. Hence, pass
following order.
ORDER
1. Notice of Motion No.3080 of 2019 is allowed and made absolute in
terms of prayer clause (a) only in relation to defendant No.1 subject to
payment of costs of Rs.1000/ (Rupees one thousand only) to plaintiff
within period of two weeks from the date of this order.
Defendant No.1 is at liberty to deposit costs payable to plaintiff in
the Court.
2. On payment of costs, notice of motion No.2104 of 2017 be
restored on file only in relation to defendant No.1.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 30.11.2019 Gr. Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30.11.2019, 4.31 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
30.11.2019
JUDGMENT/ORDER signed by P.O.
on
30.11.2019
JUDGMENT/ORDER uploaded on 30.11.2019
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