Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 3495/2019 IN SU 2251/2010
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No. 3495 of 2019
(CNR NO. MH CC01-00-9534-2019)
In
S.C. SUIT No. 2251 OF 2010
Shri Suryakant Ramchandra Shinde
....Plaintiff
V/s.
The Deputy Collector (ENC) and others
....Defendants
Appearance:-
Mr. Priyansh Shukla, Advocate for the plaintiff.
Mr. Kunal Rane, Advocate for the defendant No.6.
CORAM :- HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE :- 17th February, 2020.
ORDER
By this notice of motion, the defendant No.6 has prayed for
‘setting aside no cross order, dated 07/03/2019’ passed against her.
2. In affidavit in support, it is averred by defendant No.6
that the notice of motion is taken out for setting aside no cross
order dated 04/03/2019. The plaintiff filed affidavit of evidence
and defendant No.6 as well as her advocate were absent.
Therefore, no cross order was passed. Some documents produced
by plaintiff were also exhibited. Hence, defendant No.6 had taken
Notice of Motion No.2652/2015 for setting aside no cross order and
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further prayed to allow to file reply on the documents filed by
plaintiff.
3. It is further averred that Notice of Motion No.163/2015
taken out by plaintiff was already pending, when Notice of Motion
No.2652/2015 was taken by defendant No.6. It was allowed on
07/03/2017 and Notice of motion No.163/2015 was kept for
hearing. On 23/04/2018, the Advocate for plaintiff had not
pressed Notice of Motion No.163/2015 and therefore, it was
disposed off. The matter was adjourned on 09/07/2018 for
recording evidence.
4. It is further averred that thereafter, the plaintiff had taken
adjournments from time to time and on 10/01/2019, the Advocate
for plaintiff had submitted that he is unable to contact plaintiff and
he will issue notice to plaintiff. On 15/02/2019, the matter was
kept for cross examination of plaintiff and it was adjourned to
04/03/2019. The Advocate representing in the present matter was
unable to remain present before the Court as he shifted
permanently to Delhi. During that period, certain disputes arose in
the family of defendant No.6 and therefore, she could not contact
her advocate on record to give instructions.
5. It is further averred that in the month of August – 2019,
Defendant No.6 contacted her advocate and at that time, he
informed her that he shifted permanently at Delhi and he is not in
a position to continue with the present matter. Thereafter, the
new advocate appointed by defendant No.6 informed her that no
cross order is already passed against defendant No.6. For these
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reasons, it is prayed that in the interest of justice, notice of motion
be made absolute.
6. Plaintiff failed to file reply to the notice of motion. Heard
Learned Advocates of plaintiff and defendant No.6.
7. Defendant No.6 has sought the relief of setting aside no cross
order dated 07/03/2019. Record shows that the said order is
passed on 04/03/2019. In fact, in affidavit in support of notice of
motion, the defendant No.6 has mentioned the said date as
‘04/03/2019’.
8. The record shows that earlier, Notice of Motion
No.2652/2015 taken out by defendant No.6 for setting aside no
cross order was allowed. It also shows that Notice of Motion
No.163/2015 taken out by plaintiff was not pressed on 23/04/2018
and therefore, it was disposed off. The reasons mentioned in the
affidavit in respect of shifting of Advocate of defendant No.6
permanently to Delhi and therefore, the matter could not be
attended, appears to be justifiable for setting aside no cross order
dated 04/03/2019. In order to decide the matter on its own merit
and to give fair opportunity of defence, notice of motion needs
favourable consideration. For the delay caused on behalf of
defendant No.6, cost is required to be imposed. Resultantly, I pass
the following order :-
O R D E R
1] Notice of Motion No.3495/2019 is made absolute in terms
of Prayer Clause (a) and (b), on payment of cost of Rs.1000/- (Rs.
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One Thousand only) to District Legal Services Authority (DLSA), to
be paid on or before next date.
2] After payment of cost, defendant No.6 shall cross-examine
PW-1, without fail.
3] Notice of motion is disposed off, accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date :- 17/02/2020
Typed on : 18.02.2020
Sign on : 18.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
18.02.2020 . Mrs. S.U. Manjrekar
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 17.02.2020
Order signed by P.O. on 18.02.2020
Order uploaded on 18.02.2020
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