Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3438-19 in
in Suit no.1913 of 16
MHCC010093592019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3438 OF 2019
CNR NO.MHCC010093592019
IN
SUIT NO. 1913 OF 2016
Mr. Syed Hasan s/o Syed Madaar ..Plaintiff
V/s
1. Smt. Salma Rasool Mirde & Ors. ...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI KISHORE M. JAISWAL
(COURT ROOM NO.01)
DATE : 11th DAY OF AUGUST, 2021
Adv.S.R.Patel for the plaintiff.
ORAL ORDER
Perused the notice of motion which is taken out by the
plaintiff for setting aside the order dated 18th March, 2019 passed by
my learned predecessor. It would be apposite at this stage to
reproduce the said order dated 18th March, 2019 which is as follows:
“ Plff.and his advocate absent. Adv.for D/2 present. Rest of the
defts are absent. As plff is absent, his N/M No. 2036/17 is
dismissed in default and accordingly it stands disposed off ”.
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2 NM 3438-19 in
in Suit no.1913 of 16
2. This notice of motion is supported by an affidavit being
executed by plaintiff Syed Madaar. The copy is served upon the
defendant. In spite of giving several chances none of the defendant
have filed the reply to this notice of motion. Roznama dtd.
15.03.2021 shows that the matter is proceeded without reply to
notice of motion no. 3438/19. Today it is kept for hearing. I have
heard learned advocate for the plaintiff.
3. It is submitted that on 13th December, 2018 the advocate
for the plaintiff is busy in another Court. So also on 25th June 2019
the advocate for the plaintiff has appeared before the Pune District
Court. It appears that due to the absence of advocate the said notice
of motion was dismissed in default. There is no doubt that the notice
of motion was not heard on merits. It is a trite law that for any
mistake on part of the advocate litigant should not suffer but the CPC
also provides that the busy in another Court is no ground for
adjournment for an excuse. Considering over all circumstances and
to grant one more opportunity to the plaintiff to contest the dismissed
notice of motion no. 2036/17 on merits, I am of the opinion that
some cost needs to be imposed upon the plaintiff to be paid to the
legal services authority. Hence, in the interest of justice I pass the
following order.
ORDER
Notice of motion no. 3438/19 is allowed and made
absolute in terms of prayer clause (a) subject to plaintiff paying a cost
of Rs.500/(Rupees Five hundred) to District Legal Services
Authority, Mumbai within a period of two weeks from today.
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3 NM 3438-19 in
in Suit no.1913 of 16
Notice of motion is disposed off accordingly.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.11.08.2021 Court, Gr.Mumbai (C.R.No.01)
Dictated on : 11.08.2021
Transcribed on : 11.08.2021
Signed on :
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4 NM 3438-19 in
in Suit no.1913 of 16
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:17.08.2021 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 11.08.2021
JUDGMENT/ORDER signed by P.O. on 13.08.2021
JUDGEMENT/ORDER uploaded on 17.08.2021
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