Date: 09-10-2019
Business: Adv. A. K. Kharwar for plaintiff present and tendered registered Notice of Motion No.3286 of 2019.
Copy is given to other side.
Adv. Parag Pokale for defendant present.
Adjd for NM reply to 19.11.2019
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 19-11-2019
Date: 19-11-2019
Business: None present for plaintiff.
Adv. Pokale for defendant present.
He filed adjournment application.
O Time is granted to file reply.
Accordingly, application is disposed of.
Adjourned for reply to 18.12.2019.
Next Purpose: REPLY
Next Hearing Date: 18-12-2019
Date: 18-12-2019
Business: Adv. U. V. Singh for plaintiff present.
Adv. Miss Dhumal appeared for defendant and filed vakalatnama taken on record and marked Exh.5
Vakalatnama
She also filed reply to notice of motion No.3286/2019.
Copy is given to advocate for plaintiff.
Adjourned for rejoinder and NM hearing to 23.01.2020
Next Purpose: HEARING
Next Hearing Date: 23-01-2020
Date: 23-01-2020
Business: Adv. U.V Singh for plaintiff present.
Adv. Miss Dhumale for defendant present.
KB
LO
Advocate for plaintiff filed an application for delay condonation in taking out notice of motion - T.O.R.
O - Other side to say.
Say filed by the advocate for defendant on application itself.
Heard counsel for parties on notice of motion No.3286/2019 and delay condonation application.
Adjourned for order to 24.01.2020.
Next Purpose: NM ORDERS
Next Hearing Date: 24-01-2020
Date: 24-01-2020
Business: Plaintiff present.
Adv. U.V. Singh for plaintiff present.
Av. Miss Dhumal for defendant Present.
Defendant present.
KB
LO
Order passed below Notice of Motion No.3286 of 2019 along with delay condonation application dated 23.01.2020.
Perused notice of motion, affidavit in support of it, reply of defendant, rejoinder of plaintiff, delay condonation application, say on it and roznama of proceeding. Heard respective counsel for parties.
Notice of motion is taken out by the plaintiff to set aside order 18.06.2019 whereby notice of motion No.2515 of 2018 was dismissed in default and to restore the same on the file of this Court.
It is the contention of plaintiff that on 10.04.2019, plaintiff went to his native place for treatment of his ailing wife, and his advocate was in Thane Court to attend an urgent matter and so they could not attend above matter on that date. More so, on 18.06.2019, plaintiff was at his native place for treatment of his wife, and his advocate was in Court Room No.4. When his advocate reached to this Court, notice of motion was dismissed in default but date was not given and when advocate for plaintiff requested to the Court that he is ready to argue said notice of motion, the Court asked him to take appropriate proceeding for restoration of notice of motion No.2515 of 2018. However, plaintiff was not available so same could not be taken out on that date.
In delay condonation application it is contended that notice of motion was affirmed on 24.06.2019 but matter was adjourned to 26.08.2019 for draft issues. So, on that date, leave was sought to register draft notice of motion. In the facts of matter delay was neither deliberate nor intentional and plaintiff prayed to condone delay caused in taking out present notice of motion and also prayed to allow notice of motion in above terms.
Defendant filed reply to notice of motion and opposed it on the count that reasons given are not satisfactory and justifiable for absence of plaintiff when notice of motion No.2515 of 2018 was called for hearing. More so, plaintiff has not filed documentary evidence in support of notice of motion pertaining to the reasons assigned in it. Accordingly, she prayed for dismissal of notice of motion.
In reply to application for condonation of delay it is contended that plaintiff is deliberately causing delay and strongly opposed the application.
Plaintiff filed rejoinder to reply of defendant and reiterated contents in affidavit in support of notice of motion and annexed copy of medical papers of his wife and copy of certain pages of advocate\''s diary and prayed to allow notice of motion.
On perusal of copy of OPD Card it is clear that treatment of wife of plaintiff was going on in Govind Ballabh Pant Institute, New Delhi. No doubt, plaintiff has not filed document of that particular date but there is no reason to disbelieve statement of plaintiff on solemn affirmation that he was taking care of his ailing wife at the relevant time. Roznama dated 18.06.2019 also shows that later on Adv. U. V. Singh for plaintiff appeared which indicate that when the matter was called advocate for plaintiff was absent. Consequently, notice of motion No.2515 of 2018 was dismissed in default. Appearance of advocate for plaintiff on same date does not show that advocate for plaintiff was not intending to argue the matter on that date. In the facts of matter I am of the view that reasons assigned by the plaintiff are sufficient to set aside impugned order. So far as delay caused is concerned it is clear that affidavit in support of present notice of motion was affirmed by the plaintiff on 24.06.2019. However, date was posted to 26.08.2019 so it seems that on that date present notice of motion was taken out by the plaintiff. Aforesaid act cannot be said to be deliberate or intentional. Although there is some negligence on the part of plaintiff in taking out present notice of motion but in order to do substantial justice I am inclined to condone delay caused in taking out present notice of motion. In light of discussion made above delay condonation application and present notice of motion deserves to be allowed subject to imposition of certain costs upon plaintiff. Hence, pass following order.
ORDER
1. Delay condonation application and Notice of Motion No.3286 of 2019 are allowed. Notice of Motion is made absolute in terms of prayer clause (a) subject to payment of costs of Rs.1000/- (Rupees One Thousand only) to defendant within period of two weeks from the date of this order.
Plaintiff is at liberty to deposit the costs payable to the defendant in the Court.
2. After payment of costs, Notice of Motion No.2515 of 2018 be restored on the file of this Court at its original number and stage.
3. Accordingly, delay condonation application and notice of motion stands disposed off.
Costs paid by plaintiff to adv. for defendant who accepted costs on behalf of defendant.
Adjourned for direction 18.02.2020.
Nature Of Disposal: ALLOWED
Disposal Date: 24-01-2020