Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.3129-2019 in Suit No.1859-2018
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.3129 OF 2019
(CNR No.MHCC01-008527-2019)
IN
SUIT NO.1859 OF 2018.
(CNR No.MHCC01-000250-2016)
Hasendrasinh Mahendrasingh Jhala }
Aged : 62 years, occupation, Service }
Residing at 20, Green Park }
Bungalows, Ambli, Ahmedabad-380 058. }...PLAINTIFF.
Versus
1. Pratapsinh Fatehsingh Jhala }
Aged about 86 years, }
R/o. Vijay Niwas, Plot No.5, 25/A, }
Naushir Bharucha Marg, (Sleater Road) }
Grant Road, Mumbai-400 007. }
2. Ghanshayamsinh Jhala }
Adult, Residing at Raj Rajeshwari Society, }
Near Jalaram Vadi, Surendra Nagar, }
Gujarat-363 001. }
3. Pradumansinh Jhala }
Adult, Residing at Opp. Soranda Bus }
Stop At PO Soranda, Via Sanjan (WRTY), }
Taluka -Umergaon. }
4. Girish Pratapsinh Jhala }
Aged about 53 years, Occupation retired }
Residing at 5, Vijay Niwas, Terrace Room, }
25/A, Naushir Bharucha Marg, }
Mumbai-400 007. }
5. Bajiba Jhala }
Adult Residing at Jashoda Nagar, Near }
Patsi Dungriwad, Vata Road, Bunglow No.5,}
Ahmedabad. }
6. Jyotiba JhalaGhamshyam Sinh }
Adult Residing at Jashoda Nagar, Near }
Patsi Dungriwad, Vata Road, Bunglow No.5,}
Ahmedabad. }
7. Kuldeepsinh Narendrasinh Jhala }
Aged about 30 years, Occupation Service }
Residing at 2, Amrutnagar Co-operative }
Housing Society, Kalawad Road, }
Rajkot(Gujrat). }
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2 NM No.3129-2019 in Suit No.1859-2018
8. Indrajitsinh Jhala }
Adult, Residing at Ajay-Raaj Vaniavadi }
Wadi, Opp. Shivdhara Apartment, }
Behind Geeta Mandir, Bhaktinagar Circle, }
Rajkot, Gujrat-360002. }
9. Mahaswetaba Jhala }
Adult, Residing at Ajay-Raaj, }
Vaniavadi Wadi,Opp. Shivdhara }
Apartment, Behind Geeta Mandir, }
Bhaktinagar Circle, Rajkot, Gujrat-360002. }
10. Ilaba Ashaba Jhala }
Adult, Residing at Ajay Raaj Vanivadi }
Wadi, Opp Shivdhara Apartment, }
behind Geet Mandir, Bhaktinagar Circle, }
Rajkot, Gujrat-360002. }
11. Meenabai Jhala }
Adult, Residing at B-47, Sidhivinyak }
Nagar, Opp. Gayatri Shakti Pith, }
Amreli Gujrat-364001. }
12. Dilawarsinh M. Jhala }
Aged about 61 years, Residing at }
Gopi Society, Block No.3, Opp Nileshwari }
Apartments, Dal Mill Road, Surendra Nagar,}
Gujrat. }
13. Shivrajsinh M. Gholi }
Adult, Occupation Housewife, Residing }
at B-47, Sidhivinayak Nagar, Opp. }
Gayatri Shakti Pith, Amreli-Gujrat-364001. }
14. Jayesh Rjnikant Patel, }
Adult, Residing at Vijay Niwas, Plot No.5, }
25/A, Naushir Bharucha Road }
(Sleater Road), Grant Road, }
Mumbai-400 007. }...DEFENDANTS.
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Smt. Mangaonkar., learned advocate for the plaintiff.
Shri.Pankaj Pandey, learned advocates for defendant No.15.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 15/06/2021)
1. By filing this Notice of Motion, plaintiff has claimed reliefs
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3 NM No.3129-2019 in Suit No.1859-2018
as under;
a) That the delay of about 49 days in filing the application for
restoration of the suit may be condoned.
b) That the order dated 30/04/2019 passed by this Hon’ble
Court in the aforesaid matter dismissing the aforesaid Suit for non-
prosecution may be set aside,
c) That after setting aside the Order dated 30/04/2019, the
aforesaid suit may be restored to its file,
d)……
2. Read the affidavit filed in support of the Notice of Motion &
affidavit in reply filed by the defendant No.15. Heard learned Miss
Mangaonkar advocate for the plaintiff and learned Shri.Pankaj Pandey
advocate for defendant No.15. Perused the entire record.
3. Learned advocate for the plaintiff argued that previous
advocate representing the plaintiff in the suit has permanently shifted to
the State of Uttar Pradesh by returning the papers and proceedings to
the plaintiff but plaintiff could not contact the present advocate
immediately as plaintiff is resident of Ahemadabad in State of Gujarat.
He argued that there was no intentional fault on the part of the plaintiff
in not attending the court when the suit was pending. She argued that
plaintiff is a Senior Citizen and plaintiff has appointed the new advocate
in year 2018 due to which, notice of motion may be made absolute as
prayed.
4. As against this, learned advocate for defendant No.15
argued that suit is dismissed in default after giving sufficient
opportunities to the plaintiff. He argued that plaintiff has not only failed
to comply with the order dated 16.08.2018 passed about providing copy
of plaint to defendant No.15 but has also failed to take steps to serve
the other defendants with writ of summons. He argued that plaintiff has
not shown any sufficient cause either to condone to delay or to restore
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the suit so also, plaintiff has wrongly calculated the period of delay to
be 49 days though there is delay of 68 days. He argued that statements
made in the affidavit filed in support of notice of motion are not
supported by any document hence, notice of motion is liable to be
dismissed.
5. I have gone through the roznama of the suit. Roznama
shows that defendant No.15 had put appearance in the suit on
16.08.2018 and had submitted that plaintiff has not provided copy of
plaint to him on which, direction was given to the plaintiff to supply
copy of plaint to defendant No.15. Matter was thereafter adjourned to
12.09.2018 and 18.02.2019 but nobody was present for the plaintiff on
those dates. Roznama dated 18.02.2019 shows that matter was
adjourned to 02.03.2019 as a last chance to the plaintiff to take steps to
secure presence of remaining defendants and to provide copy of plaint
to defendant No.15. It is a matter of record that present advocate of the
plaintiff had appeared before the court on 02.03.2019 and had given
oral undertaking that she will file VP on behalf of the plaintiff on the
next date. Record shows that nobody had appeared for the plaintiff on
30.04.2019 hence, suit came to be dismissed in default on that date. It
is thereafter, this notice of motion is taken out on 24.07.2019.
6. Admittedly, the notice of motion for restoration of the suit
is not taken out within the stipulated period of 30 days . There appears
substance in the argument of learned advocate for defendant No.15 that
plaintiff has not calculated the period of delay properly however,
plaintiff has stated on oath in the affidavit filed in support of the notice
of motion that his previous advocate has shifted to State of Uttar
Pradesh which caused delay in taking out this notice of motion. It is a
matter of record that plaintiff has engaged another advocate. Even
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though, the statement made by the plaintiff about shifting of his
previous advocate to the State of Uttar Pradesh is not supported by any
document, it does not appear that plaintiff has tried to take any
disadvantage by delaying the matter without taking steps and without
complying with order dated 16.08.2018. The address of plaintiff in the
title clause of the plaint is mentioned to be of Ahemadabad from which,
the contention of the plaintiff is acceptable that he could not attend the
court regularly being not resident of Mumbai.
7. Admittedly, any interim order was not passed in the suit in
favour of the plaintiff. It does not appear that plaintiff has taken any
disadvantage by delaying the suit till it was pending. In fact, plaintiff
has not gained anything by letting his suit dismissed in default.
Considering it, this court is of the opinion that interest of justice will be
protected if the suit is restored by condoning the delay caused in taking
out the notice of motion by imposing certain costs on the plaintiff,
which shall be payable to defendant No.15, who is the only contesting
defendant. Thus, an order.
ORDER
Notice of Motion No.3129 of 2019 is made absolute as under.
Delay caused in taking of the Notice of Motion is condoned
subject to cost of Rs.2,000/-(Rupees Two Thousand Only).
Plaintiff shall pay the amount of cost as mentioned above to
defendant No.15 within six weeks from today.
On payment of the amount of cost as mentioned above, Suit
No.1859 of 2018 shall stand restored. In case of failure of the plaintiff
to pay/deposit the costs as mentioned above, this Notice of Motion shall
be deemed to have been dismissed.
Date : 15/06/2021. (P.P.RAJVAIDYA)
Dictated on : 15/06/2021. Judge, C.R.No.62,
Checked on : 18/06/2021 City Civil Court,
Signed on : 18/06/2021 Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
18/06/2021 at 2.20 am/pm. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with CR Number) HHJ SHRI.P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 15/06/21
Order signed by P.O. on 18/06/21
Order uploaded on 18/06/21
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