Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3632-19 in
in Suit no.3414 of 21
MHCC010098952019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3632 OF 2019
CNR NO.MHCC010098952019
IN
SUIT NO. 3414 OF 2014
Mrs. Mithilesh w/o Amit Bhajanlal Singh ..Plaintiff
V/s
1.Smt. Uma Bhajanlal Singh and Others. ...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI KISHORE M. JAISWAL
(COURT ROOM NO.01)
DATE : 10th DAY OF AUGUST, 2021
Adv. S.P.Shriwastav for the plaintiff.
Adv. Karuna Tiwari for the defendants no. 1 to 4.
ORAL ORDER
This notice of motion is taken out by the plaintiff for
setting aside the order dated 13th March, 2018 passed by my learned
predecessor wherein the notice of motion no. 378/15 and 1271/16
were dismissed. This notice of motion is preferred for restoration of
the same for its decision of merits with a prayer of granting liberty to
make fresh service of writ of summons upon the defendant no.5. This
notice of motion is supported by an affidavit being executed by the
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plaintiff Mrs. Mithilesh wife of Amit Bhajanlal Singh. By filing reply,
the defendants has strongly opposed it by filing an affidavit being
executed by Smt. Uma Bhajanlal Singh defendant no.1. I have heard
learned advocate Shri S.P.Shrivastav for the plaintiff and learned
advocate Karuna Tiwari for defendants no.1 to 4 at length.
2. The main suit is of the year 2014 with the prayer for
grant of perpetual injunction and declaration. The dispute appears to
be between the family members. I have gone through the order
passed by my learned predecessor dtd. 13/3/2018. It would be
apposite at this stage to reproduce the same which reads as follows:
“ In spite of directions, plaintiff has not served or filed proof of
service of WOS on D5, therefore, suit stands dismissed as against
defendant no.5. Both the motions NM 378/15, NM 1271/16 are
taken out by plaintiffs. Plaintiffs or advocate for plaintiffs, who have
taken out NMs are absent today. It seems that they do not want to
pursue their motions. Therefore, both the motions NM 378/15 and
NM 1271/16 are stand dismissed in default for want of prosecution.
Though, Adv. U.V. Singh marked his presence for D6 on 13.03.2015,
till date, no WS seems to have been filed by D6. No whisper is made
by D6 of WOS, plaint or documents not being served on him.
Therefore, suit to proceed without WS of D6” .
3. It is a matter of record that the adinterimreliefs were
granted in the present case and defendants no.1 to 4 have also filed
written statement on 13/4/2015. Thereafter there was change of
plaintiff advocate. One of the notice of motion which is dismissed
was a contempt notice of motion with an allegation that the interim
orders of the Court were not followed by the defendant. It is
submitted that the plaintiff herein is not a permanent resident of
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Mumbai and whenever she comes to Mumbai she stays with a distant
relative and mostly resided at her native place. The content of para
no.4 of the affidavit in support of notice of motion goes to show that
the plaintiff relied upon her advocate and as the advocate has failed
to attend the matter, the notice of motion has got dismissed. It is
trite law that for any mistake committed by the advocate the litigants
should not suffer. Same principle applies to the present case and if
the reasons mentioned in paras no.5 are looked into and when the
plaintiff is not residing in Mumbai, her lawyer was expected to attend
the case. Reply was opposed on the ground that for about six times
the matter was adjourned and thereafter the notice of motion was
dismissed.
4. The learned advocate for the defendants strenuously
argued before me that this notice of motion should be dismissed and
not opportunity should be given as sufficient chances were given
prior to dismissed of the notice of motion. Be that as it may, now the
plaintiff has changed the lawyer and the present advocate after going
through the record has moved this notice of motion. One of the
motion which as dismissed vide notice of motion no. 378/15 was the
injunction motion and as adinterim reliefs were granted, it shows
that the prima facie case was in favour of the plaintiff. The another
notice of motion was the contempt notice of motion. It is also a
matter of record that written statement has been filed by defendants
no.1 to 4 as per Exh.3. The matter appears to be between the family
members and parties to the suit are governed by Hindu Law.
Considering the nature of the dispute even defendant no.5, in my
opinion has to be given an opportunity to submit the written
statement. Again it shows that the advocate for the plaintiff has not
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taken steps for service to defendant no.5. On the same principle that
for the mistake by an advocate the litigants should not suffer, I am of
the opinion that one opportunity should be given to the plaintiff to
serve the fresh writ of summons upon the defendant no.5. So far as
considering the previous absence and as the advocate has not turned
up, in my opinion imposition of cost to be paid to defendants no. 1 to
4 as well as to the legal services authority would suffice the purpose.
Hence in the interest of justice, I pass the following order:
ORDER
Notice of motion no. 3632/19 is allowed and made
absolute in terms of prayer clause (a),(b) and (c) subject to the
plaintiff paying total cost of Rs.3000/(Rupees Three thousand) to
defendants no.1 to 4 and cost of Rs.1000/(Rupees One thousand) to
District Legal Services Authority, Mumbai within two weeks from
today.
The plaintiff shall take immediate steps for service of writ
of summons upon the defendant no.5.
After compliance of this, the plaintiff shall not seek any
further adjournment for hearing of notice of motion 378/15 and
notice of motion no. 1271/16.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.10.08.2021 Court, Gr.Mumbai (C.R.No.14)
Dictated on : 10.08.2021
Transcribed on : 10.08.2021
Signed on : 11.08.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 11.08.2021 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME: 3.00 pm.
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 10.08.2021
JUDGMENT/ORDER signed by P.O. on 11.08.2021
JUDGEMENT/ORDER uploaded on 11.08.2021
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