Order 1

Order Details: Order below exhibit
Pdf Text: Exhibit-28-NM.No.3827/2019 -1- SU.No.1152/2000
MHCC010103242019
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
ORDER BELOW APPLICATION EXHIBIT-28
IN
NOTICE OF MOTION NO.3827 OF 2019
IN
NOTICE OF MOTION NO.725 OF 2018
IN
S. C. SUIT NO.1152 OF 2000
Chhabildas Dalichand Bhayani .. Plaintiff
Versus
Jagdish Shantikumar Gandhi & Ors. .. Defendant
Appearance :-
Ld. Advocate Mr. P. G. Lad for the Plaintiff.
Ld. Advocate Mr. Madhusudan Joshi for the Defendants.
CORAM: HIS HONOUR JUDGE
S.M. BUKKE
COURT ROOM NO.03
DATE: 10th March, 2026.
O R D E R
(Dictated and Pronounced in open Court)
1. The Plaintiff has preferred Notice of Motion No.3827 of
2019 seeking restoration of Notice of Motion No.725 of 2018. This is
an application to recast the Notice of Motion No.725 of 2018.
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Exhibit-28-NM.No.3827/2019 -2- SU.No.1152/2000
2. The Plaintiff had filed Notice of Motion No.725 of 2018
pursuant to leave granted on 5th February, 2018. The matter was listed
on board on 5th September, 2018. On that date, the Plaintiff remained
absent and failed to tender the original Notice of Motion despite having
been granted a last opportunity. Consequently, this Court dismissed
Notice of Motion No.725 of 2018 for non-prosecution and
non-production of the original.
3. The Plaintiff has thereafter taken out Notice of Motion
No.3827 of 2019 seeking restoration of Notice of Motion No.725 of
2018, contending that the original was misplaced at his end. It is
submitted that the Notice of Motion had already been registered,
service was effected upon Defendant Nos.2A and 2E who did not
dispute such service, and that the Plaintiff possesses an office copy of
the said Notice of Motion. The Plaintiff prays that the office be directed
to accept the office copy and permit re-casting of the Notice of Motion.
4. Defendant No.2A has opposed the application, contending
that it is false, frivolous, and devoid of merits. It is urged that the
Plaintiff has been negligent and lethargic, having allowed six years to
lapse before seeking restoration, and that no explanation has been
offered as to when the Notice of Motion was misplaced or what steps
were taken to trace it.
5. Having heard the parties and perused the record, it is
evident that Notice of Motion No.725 of 2018 was dismissed on 5th
September, 2018 for want of production of the original and for
non-appearance of the Plaintiff. The Plaintiff has explained that the
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Exhibit-28-NM.No.3827/2019 -3- SU.No.1152/2000
original was misplaced, but that an office copy is available and service
upon the Defendants had already been effected. The Defendants have
not disputed service of the said Notice of Motion and produced copy of
same. In such circumstances, the technical dismissal for non-production
of the original ought not to defeat the substantive rights of the Plaintiff,
particularly when the office copy is available and the matter can be
heard on merits.
6. While there has been delay in moving the present
application, the same does not cause prejudice to the Defendants, who
were already served with the Notice of Motion. Since the defendant has
to bear additional expenses (legal fees, time, inconvenience) due to the
plaintiff’s delay, awarding costs helps offset that burden.
7. The ends of justice would be better served by permitting
the Plaintiff to re-cast the Notice of Motion No.725 of 2018 on the basis
of the copy provided by defendant rather than shutting the doors of
adjudication on a technical ground. Accordingly, the application is
allowed. Hence, the following order is passed:
O r d e r
1. The Application filed by plaintiff dated 02.05.2024 vide Exhibit-
28 to recast Notice of Motion No.725 of 2018 is allowed subject to costs
of Rs.3000/- payable to defendant No.2(a).
2. The defendant No.2(a) has provided the photo copy of
NM.No.725 of 2018 a/w its affidavit in support. It be re-casted and
taken on record on payment of cost.
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Exhibit-28-NM.No.3827/2019 -4- SU.No.1152/2000
3. The office is directed to accept the office copy of Notice of
Motion No.725 of 2018 and to re-cast the same.
4. The restored Notice of Motion shall be listed for hearing in due
course.
5. Accordingly, Application Exhibit-28 is disposed of.
(S.M. BUKKE)
Judge,
City Civil Court,
Date: 10.03.2026 Mumbai.
Dictated on : 10.03.2026
Transcribed on : 10.03.2026
Checked on : 13.03.2026
Signed on : 16.03.2026
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Exhibit-28-NM.No.3827/2019 -5- SU.No.1152/2000
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME 16.3.2026/5.31 p.m.
NAME OF STENOGRAPHER (Grade-1) (Mrs. Pradnya S. Naik)
Name of the Judge (With Court room no.) Shri S.M. BUKKE
(C.R. No.03)
Date of Pronouncement of JUDGMENT/
ORDER
10.03.2026
JUDGMENT/ORDER signed by P.O. on 16.03.2026
JUDGMENT/ORDER uploaded on 16.03.2026
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