Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3403-19 in
in Suit no.7159-06 in
H.C.No.2938-06 of 1995
MHCC010092992019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3403 OF 2019
CNR NO.MHCC010092992019
IN
SUIT NO. 7159 OF 2006
IN
HIGH COURT SUIT NO. 2938 OF 2006
1. Manjit Singh Sethi & Anr. ..Plaintiffs
V/s
1.M/s. Nahar Enterprises and Anr. ...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI KISHORE M. JAISWAL
(COURT ROOM NO.01)
DATE : 1st DAY OF SEPTEMBER, 2021
None for the plaintiffs.
Adv. Paridhi Sachdeva for defendants
ORAL ORDER
This notice of motion is taken out by the original
plaintiffs in suit no. 715906 ( High Court suit no. 293806)for
condoning the delay, setting aside dismissal order dated 29th June
2013 and restoration of the suit to its original stage. This motion is
supported by an affidavit being executed by plaintiff no.1 M. S. Sethi.
While opposing the notice of motion the defendants have filed the
reply on affidavit being executed by Mr. Sukhraj Nahar. I have
hearing learned advocate Paridhi Sachdeva. I have perused the
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H.C.No.2938-06 of 1995
record. I have perused the contents of application and both the
affidavits.
2. It is an admitted fact that initially the suit was instituted
before the Hon'ble Bombay High Court and in the year 2012 the suit
was transferred to City Civil Court. The defendants have filed the
written statement after transfer of the suit and the roznama dated
21/02/2013 shows that the stage of the suit was for framing of
issues. Service of writ of summons was also been done. The roznama
dated 17/06/2013 shows that none was present for the plaintiff and
the Court has kept it for dismissal order. On 29/06/2013 my learned
predecessor has passed an order stating that 'since nobody appears
for the plaintiff, the suit stands dismissed for want of prosecution.' It
is pertinent to note here that the stage of the suit was not for hearing
or for evidence. The issues infact were not framed in the present
case.
3. The main suit is for declaration and seeking specific
performance of an agreement dtd. 18Th December, 2004 with
consequential relief of possession and injunction. The plaintiff case is
that at the agreement of the suit property he has paid certain earnest
amount to the defendants. If the earnest amount is looked into it is
around Rs.4,00,000/(Rupees Four lacs) which was paid in the year
2004. In the main suit alternative prayer of refund of amount with
interest is also claimed. Thus in my considered opinion if alternate
relief is prayed one opportunity can be granted to the plaintiff to
contest the suit on merits.
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4. The contents of para no.5 of the affidavit in support
shows that some interim orders were passed by the Hon'ble High
Court and even the parties to the suit had attempted to settle the
matter. As the matter was not settled, the case was proceeded. The
contents of affidavit in support, specifically paras no. 7 and 8 also
shows that the plaintiff was aware of transfer of the suit and
therefore it remained unattended by the previous advocate. In my
opinion, for any omission or mistake on part of the advocate the
litigants should not suffer. Therefore by imposing certain costs
original suit can be restored to its original stage. In my opinion, if the
suit is restored no prejudice is going to cause to the defendants as
they have already filed the written statement and will certainly get an
opportunity to lead the evidence and defend the suit. Therefore for
giving fair opportunity to the parties and to decide the suit on merits
and in the interest of justice, I pass the following order.
ORDER
Notice of motion no. 3403/19 is allowed and made
absolute in terms of prayer clause (a) and (b) subject to conditions
that the applicants / ( original plaintiffs) shall pay the costs of
Rs.5000/ (Rupees Five thousand) to the defendants within one
month from today.
Notice of motion is disposed off accordingly.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.01.09.2021 Court, Gr.Mumbai (C.R.No.01)
Dictated on : 01.09.2021
Transcribed on : 02.09.2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:03.09.2021 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 01.09.2021
JUDGMENT/ORDER signed by P.O. on 03.09.2021
JUDGEMENT/ORDER uploaded on 03.09.2021
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