Date: 18-09-2019
Business: Adv. Raje for plaintiff present.
Adv. Mahadik for defendants present.
Defendants tendered registered NM 3161/19.
Heard argument on NM No. 3161/19.
Order below Notice of Motion No. 3161/19
Heard the Ld. Counsel for the defendants submitted that the Notice of Motion No. 2707/18 was tendered by the defendants under Order 7 Rule 11 of CPC and same was dismissed in default. The Notice of Motion was fixed for 16.1.2019 and on that day it was dismissed for default. The advocate was not present when the matter was called and reached belatedly. After checking the roznama on 12.3.2019 it revealed that the said NM was dismissed for default.
The NM is opposed by the plaintiff on the count that sufficient cause has not been made out . The affidavit of concerned advocate is not filed and the defendant deliberately did not prosecute the NM.
The statement made by the defendant no. 1 that his advocate did not attend the court on 16.1.2019 appears to be as per the record. His advocate was present on 15.3.2019 and on that day the NM was tendered to set aside the order. It appears that the counsel for the defendants has not tendered the NM and therefor it came to be dismissed. By the said NM the defendants claim to have raised the issue which pertains to rejection of the plaint. It would not be proper to deny the opportunity to the defendants of being heard. In the interest of justice the present NM needs consideration. Hence, it is expedient to pass following order.
ORDER
1. Notice of Motion No. 3161/2019 is made absolute in terms of prayer clause (i) to (iii) subject to cost of Rs. 2,000/- to be paid by the defendant no. 1 to the plaintiff within a period of 10 days from today.
2. Payment of cost is subject precedent.
3. In the event of payment of cost, Notice of Motion No. 2707/2018 be restored.
4. Notice of Motions is disposed of accordingly.
Nature Of Disposal: ALLOWED
Disposal Date: 18-09-2019