Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3888/19 in SC Suit 3912/13 : 1 :
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3888 OF 2019
IN
S.C. SUIT NO.3912 OF 2013
Shri.Anil Prataprai Khimani .. Plaintiff
V e r s u s
Ram Sajivanlal Soni & Another .. Defendants.
Ld. Advocate Mr. Rahul R.Kapur for Plaintiff.
Ld. Advocate Mr.Sony for defendant no.1 and 2.
CORAM : HIS HONOUR JUDGE
SHRI.SHANKAR G.BORLEPWAR,
(Court Room No. 20)
DATE : 10th JANUARY, 2020.
1. Plaintiff has filed this Notice of Motion for removal of caption of
dismissal of suit and to take on record evidence affidavit alongwith list
of documents.
2. Perused the Notice of Motion, Affidavit in Support of Notice of
Motion and reply of defendants.
3. Following points arise for my determination. I record the findings
thereon for the reasons given below:
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NM No.3888/19 in SC Suit 3912/13 : 2 :
Sr.No
.
POINTS FINDINGS
1 Whether caption of dismissal of suit
can be changed ?
In the affirmative
2. Whether plaintiff can be permitted to
lead the evidence ?
In the affirmative
3 What order ? As per final order
REASONS
AS TO POINT NO.1 AND 2
4. It is the contention of the plaintiff that the suit was for filing of
evidence. Issues are framed on 20/6/2018. Plaintiff was out of India
and had entrusted the matter to then Advocate Mr.Surendra R.Yadav.
The then advocate on record failed to appear before the Court on
18/1/2018, 6/9/2018, 29/10/2018 and 21/1/2019 for the reasons
best known to him. The absence of the said advocate was not informed
to him. Consequently, on 21/1/2019 he and his then advocate were not
present before the Court. Therefore, the matter is posted for dismissal
order.
5. Plaintiff discharged his previous advocate and he appointed new
advocate on 142019 i.e. Advocate Mr.Rahul R.Kapur. On 2/7/2019
due to heavy rains the board was discharged & matter posted on
20/7/2019. On 20/7/2019 present advocate of the plaintiffs filed
Vakalatnama and matter was posted for dismissal order, as the then
Presiding Officer of this Court directed plaintiff to take necessary steps
and prefer Notice of Motion to remove the suit from the caption of
dismissal. Therefore, Notice of Motion be allowed.
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NM No.3888/19 in SC Suit 3912/13 : 3 :
6. Defendants filed reply in handwriting through advocate. In brief,
it is contention of defendant that sufficient opportunity was given to
the plaintiff to lead evidence. Plaintiff did not lead evidence. Therefore,
it is prayed to dismiss the notice of motion with costs.
7. Perused the record. Suit was posted for filing evidence on
18/7/2018. None was present on 18/7/2018. Thereafter, matter
adjourned to 6/9/2018. On 6/9/2018 none present for the plaintiff,
advocate of defendant no.1 and 2 was present. Matter adjourned for
evidence of plaintiff on 29/10/2018. On 29/10/2018 none present,
matter adjourned for evidence of plaintiff of 21/1/2019. On 21/1/2019
none present for plaintiff as matter kept for dismissal order of
16/2/2019. On 16/2/2019 advocate of plaintiff was present, advocate
of defendant was also present. Plaintiffs advocate filed application for
adjournment, adjournment granted for taking steps as the matter is
posted for dismissal order. Thereafter, matter adjourned on 142019.
On 142019 plaintiffs present and advocate was present. He
undertakes to file Vakalatnama and to take necessary steps, hence
matter adjourned on 2/7/2019. On 20/7/2019 plaintiffs advocate filed
Vakalatnama and matter adjourned for taking steps on 16/8/2019.
Thereafter, this Notice of Motion is filed. Suit is filed in the year 2013.
Defendants appeared and issues are framed on 20/6/2018. Considering
the nature of the suit and reasons for nonappearance of plaintiff on the
said dates I am of the opinion that plaintiff can be permitted to lead
evidence. Hence, I answer point no.1 and 2 in affirmative. Notice of
Motion is allowed as per following order:
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NM No.3888/19 in SC Suit 3912/13 : 4 :
O R D E R
1. Notice of Motion no.3888/19 is allowed .
2. Order dated 21/1/2019 keeping the matter for dismissal order is
hereby set aside.
3. Plaintiff is permitted to lead evidence.
4. Matter be posted for filing evidence.
5. Costs in cause.
Date : 10.01.2020 (S.G.Borlepwar)
Judge
City Civil & Sessions Court,
Gr. Bombay.
Dictated on : 10.01.2019
Typed on : 13.01.2019
Signed by HHJ. : 14.01.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
15.01.2020 3.00 p.m. Mrs. Jyoti Mane
Name of the Judge HHJ Shri S.G.Borlepwar (CR
No.20)
Date of Pronouncement of
Judgment/Order.
10.06.2019
Judgment/order signed by P.O on 14.01.2020
Judgment/order uploaded on 15.01.2020
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