Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3606 OF 2019
IN
SUIT NO.2609 OF 2011
(DISPOSED OF SUIT)
(CNR NO.MHCC01-009807-2019)
Mr. Basant Parasram Jethi & Ors. ).. Plaintiff.
V/s.
The MCGM and Anr. ).. Defendants.
Appearances :-
Ld. Adv. Ms. Sarita Donde for plaintiff.
Ld. Adv. Mr. Chandramore for defendant No.1/BMC.
CORAM : HIS HONOUR JUDGE V. V. PATIL
COURT ROOM NO.09
DATE : 3rd MAY, 2024.
ORDER
Plaintiff has taken out present Notice of Motion for setting
aside order of dismissal of suit dated 05.12.2017 and for restoration of
suit and condonation of delay in filing Notice of Motion for restoration
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of suit.
2. It is contention of the plaintiff that he has filed suit against
defendants and this Hon’ble Court has pleased to grant injunction in his
favour on 05.12.2017, as their advocate on record was absent due to
weather condition ‘Okhi Cyclone’ and heavy rain fall was there near
Mumbai and Vasai and alert was also issued by the Government of
Maharashtra regarding the same and advocate was residing at Vasai,
she was unable to attend the Court. The plaintiffs were also unable to
attend the Court due to cyclone and heavy rain fall. The Hon’ble Court
pleased to pass the order of dismissal of the suit due to non-appearance
of the plaintiffs and the advocate on 05.12.2017.
3. It is further submitted that the affidavit of evidence has
already been filed on 20.08.2014. The matter was fixed for filing
original list of documents and their advocate on record was ready to file
the same but in absence of advocate, it can not be filed on 05.12.2017.
Thus, there was no intentional absence on the side of plaintiffs as well
as advocate on record. Therefore, the order of dismissal of suit dated
05.12.2017 be set aside and suit be kindly restored to file at its original
stage. The injunction already granted be continued till disposal of the
suit. Hence, plaintiff prayed for allowing the Notice of Motion.
4. Defendant No.2/MCGM filed reply to the Notice of Motion
overleaf and strongly opposed the same. It is submitted that in the
present case plaintiff filed affidavit of evidence on 20.08.2014 and
thereafter till 2017 plaintiffs did not furnish compilation of documents.
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Hence, Hon’ble Court dismissed suit for want of prosecution. The suit is
old one. The plaintiff is prolonging the matter without any reason. The
suit is already dismissed. Hence, ad-interim order is also vacated.
Therefore, considering these grounds, Notice of Motion be dismissed.
5. Perused the Notice of Motion & Affidavit-in-support of
Notice of Motion as well as reply filed by defendant No.1. The following
points arise for my determination and I have recorded my findings to
each of them for the reasons stated below :-
Sr. No. POINTS FINDINGS
1. Whether plaintiff has made out case for
setting aside order of dismissal of suit
No.2609/2011 dated 05.12.2017 and
for restoration of suit?
In the Affirmative.
2. What order? As per the final order.
R E A S O N S
AS TO POINT No.1 :
7. Heard Ld. Advocate for plaintiff and advocate for
defendant No.1. Also perused record of the case. On perusal of record,
it revealed that, affidavit of evidence was filed by plaintiff on
20.08.2014. Thereafter, matter was posted from to time for filing
compilation of documents. Since, plaintiff failed to file compilation of
documents, suit came to be dismissed in default of plaintiff on
05.12.2017. Now, the reason assigned for absence of plaintiff and his
advocate is that, on that day, due to bad weather condition on account
of ‘Okhi Cyclone’ and due to heavy rain fall, alert was issued by the
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Government of Maharashtra and because of this, the plaintiffs as well as
their advocate could not appear before the Court o 05.12.2017 and
therefore, on that day, this Hon’ble court passed order of dismissal of
suit due to non-appearance of plaintiffs and advocate. Now, as
submitted on behalf of defendants, plaintiff has not produced on record
any documentary evidence in support of their contention. Further,
plaintiffs have not offered explanation about the non prosecuting the
matter prior to 05.12.2017 i.e. from 20.08.2014 to 05.12.2017.
However, considering the submissions and in order to decide the matter
on merits, it would be just and proper to give opportunity to the
plaintiffs to prosecute the suit. At the same time, necessary cost needs to
be imposed upon plaintiff for causing delay in the matter. Hence, I hold
that delay caused in filing Notice of Motion needs to be condoned and
order of dismissal of suit dated 05.12.2017 is liable to be restored
subject to imposition of cost upon plaintiffs. So far as prayer of plaintiff
regarding continuation of injunction is concerned, that can not be
allowed since injunction order is already vacated before 7 years i.e. on
05.12.2017 which can not be continued now. Hence, I hold that Notice
of Motion deserves to be allowed by imposing cost upon the plaintiff.
Hence, I answer point No. 1 in the affirmative and proceed to pass the
following order :-
ORDER
1. Notice of Motion No. 3606 of 2019 in Suit
No.2609 of 2011 (Disposed of) is hereby allowed.
2. The order of dismissal of suit No.2609/2011
dated 05.12.2021 is hereby set aside and suit
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No.2609/2011 is restored to it’s original position
subject to payment of cost of Rs.5000/- (Rupees
Five Thousand Only) to be deposited in the office
of DLSA, Mumbai within the period of two
months.
3. Upon payment of cost, suit No.2609/2011 be restored to
it’s original position.
4. Notice of Motion stands disposed of accordingly.
(Order dictated & pronounced in open Court)
(V. V. PATIL)
Judge, City Civil Court,
Dated : 03.05.2024 C.R. No.09, Gr. Mumbai.
Dictated on : 03.05.2024
Transcribed on : 03.05.2024
Signed on : 03.05.2024
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“Certified to be true and correct copy of the original signed order”.
03.05.2024
at about 16.30 p.m.
(Manisha D. Hirole)
Stenographer (Grade-I.)
Court Room No.09, Gr. Mumbai.
Name of the Hon'ble Judge : HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Order : 03.05.2024
Order signed by Hon'ble Judge on : 03.05.2024
Order uploaded on : 03.05.2024
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