Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.3514/2019
in S.C. Suit No.2082/2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.3514 of 2019
(CNR NO. MH CC01-009573-2019)
In
S.C. SUIT No.2082 OF 2018
Prakash Bajirao Ghosalkar ….Plaintif
V/s.
Maharashtra Housing And Area Development
Authority (MHADA) & Ors. ....Defendants
Appearance:-
Ms. Harshada Kamble, Advocate for the plaintif.
Mrs. Prabhu, Advocate for the defendant No.1
CORAM :- HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE :- 04th February, 2020.
ORDER
1. By this notice of motion, plaintif has prayed for
setting aside order dated 06.08.2019 thereby dismissing the
suit in default, for restoration of the suit and for condonation of
delay of fve days in taking out the notice of motion.
2. In afdavit-in-support, it is averred by plaintif that
the suit was fled on 25.06.2018 and on 28.08.2018, notice of
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2 Notice of Motion No.3514/2019
in S.C. Suit No.2082/2018
motion was placed on record by previous Advocate of the
plaintif. However, thereafter the plaintif undergone Heart
Surgery and therefore he was unable to attend the matter. Due
to the oversight and negligence of earlier Advocate, the matter
was not attended for service of writ of summons of defendants
and therefore it was dismissed in default.
3. It is further averred that there is delay of fve days in
taking present notice of motion which is required to be
condoned as the plaintif was bed ridden due to Heart Surgery.
There is no willful delay on the part of plaintif. Therefore, it is
prayed that notice of motion may kindly be made absolute.
4. Defendants have not fled any reply to the notice of
motion.
5. Heard learned Advocate for plaintif and learned
Advocate of defendant No.1. Following points arise for
consideration. Findings against each of them along with
reasons are stated as below.
SR.
NOS.
POINTS FINDINGS
1. Whether the plaintif has
made out any sufcient
cause for condonation of
delay and for restoration of
S.C. Suit No.2082/2018 ?
In Afrmative.
2. What Order ? As per fnal order
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in S.C. Suit No.2082/2018
REASONS
As to point Nos.1 and 2 jointly
6. It is submitted by learned Advocate of plaintif that
due to ill health of plaintif and negligence of earlier Advocate,
the matter was not attended on the fied dates. Therefore, the
notice of motion needs favourable consideration.
On the other hand, it is submitted by the learned
Advocate for defendant No.1 that medical report submitted by
the plaintif shows that he was admitted in the Hospital
26.11.2018 and was discharged on 28.11.2018. Therefore,
contentions of plaintif that he had under gone Heart Surgery,
can not be relied upon. Therefore, it is prayed that notice of
motion may kindly be dismissed with cost.
7. It is not in dispute that the suit was dismissed in
default on 06.08.2019 and the present notice of motion is taken
out on 11.09.2019. Therefore, there is delay of fve days in
tendering present notice of motion. It is the contention of
plaintif that he had under gone Heart Surgery and due to
oversight and negligence of earlier Advocate, the matter was
not attended on fied dates. As rightly submitted by learned
Advocate for defendant No.1, the medical report submitted by
the plaintif refects that he was admitted in the Hospital on
26.11.2018 and was discharged on 28.11.2018. There is no
other document fled on record to show that the plaintif had
under gone Heart Surgery. No document is fled on record to
show that on the relevant dates, plaintif was under medical
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in S.C. Suit No.2082/2018
treatment. However, the reasons mentioned by the plaintif
that due to oversight and negligence of earlier Advocate, the
matter was not attended and there is no willful delay caused on
behalf of plaintif for taking steps for restoration of suit are
“sufficient” which needs favourable consideration for
condonation of delay and restoration of suit. It is well settled
that a party should not sufer due to oversight or negligence of
an advocate.However, for the delay caused by plaintif cost is
required to be imposed. Resultantly, for the delay caused on
behalf of plaintif, I am of the opinion that cost of Rs.1,500/- to
“District Legal Aid Services Authority” (DLSA) will meet
the ends of justice. Accordingly, point No.1 is answered in
afrmative and for the answer of point No.2, I pass following
order.
ORDER
1) Notice of Motion No.3514/2019 is made absolute in terms
of prayer clause (a) & (b) subject to cost of Rs.1,500 /-
(Rs. Five Thousand Only) to be paid to “District Legal
Aid Services Authority” (DLSA) Mumbai, within
thirty days from the date of order.
2) Payment of cost is condition precedent and failure to
make compliance of the same within thirty days from the
date of order, will automatically result in dismissal of
notice of motion.
3) After payment of cost, S.C. Suit No.2082/2018 be restored
to its original stage.
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4) Notice of Motion No. 3514/2019 disposed of accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date :- 04/02/2020
Dictated on : 04.02.2020
Transcribed on : 04.02.2020
Signed on : 06.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
07.02.2020 11.25 a.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 04.02.2020
Order signed by P.O. on 06.02.2020
Order uploaded on 07.02.2020
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