Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M. No.3754/2019 in
S.C. Suit No.1590/2015. 1 Order.
MHCC010101872019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3754 OF 2019
IN
S.C. SUIT NO. 1590 OF 2015
Mrs. Zohra Begum Gausuddin ... Plaintiff
V/s.
Mrs. Farzana, Wife of Iqbal Ahmed ... Defendant
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 02-11-2023
Appearance:-
Ld. Advocate Shri. Kiran Mishra for the plaintiff.
Ld. Advocate Shri. Shushil Shukla for the defendant
ORDER
1. Defendant has taken out this notice of motion to set aside order
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N.M. No.3754/2019 in
S.C. Suit No.1590/2015. 2 Order.
dtd.21-06-2018 and for restoration of earlier Notice of motion. He also
sought to set aside set aside the order of no written statement dtd. 29-
03-2017 and to take written statement on record.
2. I have heard Ld. Advocate Shri. Kiran Mishra for the
plaintiff and Ld. Advocate Shri. Shushil Shukla for the defendant.
3. It appears from the record that, no written statement order
was passed against defendant on 29-03-2017. Defendant had taken out
draft notice of motion on 01-03-2018. After granting leave to register
the same, defendant had not taken out said notice of motion for
registration and consequently, on 21-06-2018 said notice of motion was
dismissed in default by this court. Thereafter, defendant taken out
present notice of motion on 21-02-2019, which is registered and filed
on 07-10-2019.
4. Ld. Advocate Shri. Shushil Shukla for the defendant
submitted that, the earlier Notice of Motion No. 2361 of 2018 was not
taken out for registration and therefore, it was dismissed on 21-06-2018
as her advocate was absent. Defendant and her advocate were absent
on 17-04-2018. Defendant was absent due to ill health and personal
difficulty on 21-06-2018. Advocate could not attend the matter due to
reason beyond control and therefore, draft notice of motion came to be
dismissed on 21-06-2018. In the interest of justice, said order needs be
set aside and Notice of Motion No. 2316 of 2018 be restored.
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N.M. No.3754/2019 in
S.C. Suit No.1590/2015. 3 Order.
5. Ld. Advocate for the plaintiff argued that, the present
notice of motion is not within limitation since the date of dismissal. It is
filed only to delay the proceeding. Sufficient time was given to
defendant to file written statement. No sufficient cause is shown for
restoration. Hence, Ld. Advocate for the plaintiff prayed to dismiss the
notice of motion.
6. I have considered the submissions. It appears from the
record that, because of not taking out notice of motion for registration
for one date on 17-04-2018, said notice of motion came to be dismissed
on 21-06-2018. Thereafter, on 21-02-2019 defendant had taken out
present notice of motion. The reason given in para-4 of the affidavit
that defendant was absent due to ill-health and personal difficulty and
her advocate was absent on 21-06-2018 due to reasons beyond his
control. It appears from the record that after 8 months from disposal of
notice of motion, the present notice of motion is taken out. The suit is
not reached at any substantial stage. Hence, the reasons given in Para-4
of the affidavit appears to be genuine. The suit is for recovery of
immovable property. Hence, opportunity needs to be given to defendant
to restore the Notice of Motion No. 2316 of 2018 which was dismissed
on 21-06-2018. No doubt, this court has expedited the suit by allowing
the Notice of Motion No. 3004 of 2019. Because of this notice of motion
and restoration of notice of motion, plaintiff will be suffered. Hence,
present notice of motion deserves to be allowed subject to costs on
defendant. Hence, I pass following order:
- ORDER
1. Notice of Motion No. 3754 of 2019 is allowed in terms of
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N.M. No.3754/2019 in
S.C. Suit No.1590/2015. 4 Order.
prayer clause (a) only, subject to costs of Rs.1000/- to be paid to
the plaintiff within 15 days.
2. On deposit/payment of costs, Notice of Motion No. 2316 of
2018 will be restored. It is made clear that no time for deposit of
costs will be extended for any reason.
3. Notice of Motion No. 3754 of 2019 is disposed off, accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date :02-11-2023 Gr. Bombay.
1. Dictated on : 02-11-2023
2. Transcribed on : 02-11-2023
3. Checked and Signed on : 04-11-2023
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N.M. No.3754/2019 in
S.C. Suit No.1590/2015. 5 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04-11-2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 02-11-2023
Judgment/Order signed by P.O. on 04-11-2023
Judgment/Order uploaded on 04-11-2023
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