Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3900/19 in S.C.Suit No. 2435/15. 1 Order.
MHCC010107422019
Presented on : 22-10-2019
Registered on : 22-10-2019
Decided on : 02-04-2024
Duration : 4 years, 5 months, 11 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3900 OF 2019
IN
S. C. SUIT NO. 2435 OF 2015
Mrs. Madhura Murlidhar Garad )...Plaintiff
Versus
Mr. Sanjay Sahdev Panwalkar and another )...Defendants
Shri P.N.Mishra, Advocate for the plaintiff.
Shri Tushar Kochale, Advocate for the defendants.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 2nd APRIL, 2024.
ORDER
1. This notice of motion moved by the plaintiff [in short the
applicant] to restore the suit dismissed in default on 29/11/2018.
2. It is the case of the plaintiff / applicant that she had
instituted the suit for declaration and injunction in respect of the suit
premises situated at Room No.1, Tulsidas Madhavji Thakkar Chawl, Old
Kurla, Mumbai. The suit was pending for hearing. The plaintiff left the
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N/m No. 3900/19 in S.C.Suit No. 2435/15. 2 Order.
jurisdiction of the court to visit her house at the native place. She relied
upon her advocate to conduct the matter. However, when she went to
the native place, she met with an accident and she was bed-ridden for
long time. Therefore, she could not attend the Court for long period.
3. It is also contention of the applicant that she was under
impression that her advocate is looking after the matter, however in the
month of May, 2019 she came to know from her advocate that her
advocate had also went to the native place as his mother was expired
and he has no knowledge as to status of the suit. Thereafter vide
impugned order the suit was dismissed for want of prosecution. Hence,
this notice of motion.
4. In reply, defendants contend that the notice of motion is
devoid of merit. There is no proper explanation for huge delay. The
plaintiff has not come before the court with clean hands. The plaintiff
was absent for five consecutive dates and therefore impugned order is
passed. The plaintiff has not filed any documentary proof to show that
she had met with an accident and her advocate was also absent due to
demise of his mother. Hence prayed to reject the notice of motion.
5. Besides contents of the notice of motion and affidavit in
support of it, the plaintiff has not filed any document to support her
contention. Therefore there is substance in submission of defendants
that the plaintiff has not given proper explanation for delay to conduct
the suit and to move this notice of motion. The plaintiff contends that
she had met with an accident and she was bed-ridden for considerable
time. If it was so, it was incumbent on the plaintiff to file medical
papers to support her contention. There is no explanation for non-
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N/m No. 3900/19 in S.C.Suit No. 2435/15. 3 Order.
appearance of plaintiff before the Court when the suit was kept for
hearing. There is also no explanation for delay in filing notice of
motion. On this count notice of motion suffers.
6. It is also significant to note that though the plaintiff
contends that the suit was instituted for declaration, it is suit for
prohibitory injunction only. This fact is candidly admitted by the learned
advocate for the plaintiff. Considering relief sought by the plaintiff the
dismissal of the suit for default will not preclude the plaintiff to institute
the suit for same relief if there is cause of action after impugned order is
passed. It is not the case of the plaintiff that after impugned order is
passed there is cause of action to the plaintiff to seek relief of
injunction.
7. It is needless to say the principle of res judicata is not
applicable to the suit for injunction. The plaintiff claims right over the
suit property vide agreement of the sale executed by one Sahdev
Panwalkar to which defendants are not party. It means if the suit is not
restored, the plaintiff will not suffer irreparable loss. At the cost of
repetition it is noted that the plaintiff has not filed any documentary
evidence to support her contention vide this notice of motion and
nature of the suit does not disentitle the plaintiff from instituting such
suit for cause of action if arise in future against these defendants.
Therefore, for want of proper explanation to condone delay and non-
appearance of the plaintiff before the court when suit was kept for
hearing, the notice of motion is liable to be rejected. In the result,
following order is passed :
- ORDER -
1. Notice of Motion No. 3900/2019 is hereby rejected.
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N/m No. 3900/19 in S.C.Suit No. 2435/15. 4 Order.
2. N/m No. 3900/2019 is disposed off accordingly.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 02/04/2024. Mumbai.
1. Dictated on : 02/04/2024.
2. Transcribed on : 06/04/2024.
3. Signed on : 08/04/2024.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/04/2024. 11.11 a.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 02/04/2024.
Judgment/Order signed by P.O. on 08/04/2024.
Judgment/Order uploaded on 10/04/2024.
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