Final Order 2

Order Details: Notice of Motion
Pdf Text: Order in N/M No. 3792 of 2019 1 Suit No. 2073 of 2013 (Disp.Off)n
MHCC010102642019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 3792 OF 2019
IN
L.C. SUIT NO. 2073 OF 2013
(Disposed off Matter)
Munshiraza Elias Mohammed Sheikh ]...Plaintiff.
Versus
Mrs. Reshma Taj Mohammed Sheikh & Ors ]..Defendants
Appearance:
Advocate Shri Brijesh Shukla for Plaintiff.
Advocate Bibhishan Sutar present for MCGM/defendant.
Adv.Pradeep Yadav of defendant no. 01 and 02.
None present for defendant no. 03 to 11.
CORAM : H.H.JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P.KSHIRSAGAR,
(C.R. No.05).
DATE : 22nd OCTOBER, 2021.
ORAL ORDER
1. Plaintiff has taken out this Notice of Motion for
restoration of suit no. 2073 of 2013 by setting aside the order of
dismissal of suit for want of prosecution dated 21.08.2019.
2. Perused the Notice of Motion, affidavit of reply of defendant
no.1 and 2 and record. In spite of several opportunities, other
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Order in N/M No. 3792 of 2019 2 Suit No. 2073 of 2013 (Disp.Off)n
defendants failed to file reply.
3. Heard arguments advanced by learned advocate for
plaintiff and learned advocate for defendant Nos. 1 and 2.
4. The learned Advocate for plaintiff argued that plaintiff
satisfied that there was sufficient cause for non appearance of plaintiff
and his advocate on 21.08.2019. Therefore, present Notice of Motion
be allowed.
5. The Learned Advocate for defendant no.1 and 2 argued that
plaintiff failed to satisfy to this court that there was sufficient cause
for his nonappearance and non appearance of his advocate on
21.08.2019. Earlier also the suit was dismissed for failure of plaintiff
to file affidavit of evidence. After restoration of suit, as per order in
Notice of Motion No. 1694 of 2016, also the plaintiff neglected to file
his evidence and to prosecute the suit. Therefore, the court rightly
dismissed the suit for want of prosecution. Moreover, the present
Notice of Motion is not taken out by the plaintiff within prescribed
period of limitation. Hence, Learned advocate for defendant nos. 1
and 2 prayed to reject the Notice of Motion.
6. On perusal of roznama of the Suit No. 2073 of 2013 dated
21.08.2019, reveals that on 21.08.2019, the matter was kept for
evidence of the plaintiff. On that day, the plaintiff and his advocate
were absent and therefore, the court dismissed the suit for want of
prosecution.
7. It appears that the plaintiff has taken out present Notice of
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Motion on 03.10.2019. As per Article 122 of Limitation Act, 1963 the
period of limitation for restoration of suit dismissed for default of
appearance or want of prosecution is 30 days from the date of
dismissal. Thus, from perusal of Notice of Motion and record, it is
clear that the plaintiff has not taken out present notice of motion
within prescribed period of limitation. Moreover, the plaintiff has
neither prayed for condonation of delay in taking out present notice
of motion nor filed other Notice of Motion for condonation of delay in
taking out the present Notice of Motion for restoration of suit.
Moreover, the plaintiff has not explained the delay in his affidavit in
support of Notice of Motion. As such, it is clear that present Notice of
Motion is barred by law of limitation.
8. Considering the matter on record, and fact that the
present notice of motion is not taken out by the plaintiff within
prescribed period of limitation, present Notice of Motion is liable to be
dismissed as barred by law of limitation. Therefore, this court
proceeds to pass the following order
ORDER
1) Notice of Motion No. 3792/19 is dismissed
with costs.
2) Notice of Motion No. 3792/19 is disposed
off accordingly.
3) Proceeding is closed.
(K.P. Kshirsagar)
Judge
C.R.No.5
22.10.2021 City Civil Court, Gr. Bombay
Dictated On : 22/10/2021.
Transcribed on : 22/10/2021.
Checked by PO : 23/10/2021.
Signed by HHJ on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.10.202,02.40pm Mrs. Pushpa R. Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room
No.)
HHJ K.P. Kshirsagar,(C.R.No.05)
Addl. Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 22.10.2021
Order signed by P.O. on 23.10.2021
order uploaded on 29.10.2021
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