Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3928-19 in S.C.Suit no. 4586-2008
H.C.Suit No. 2677 of 2008 1 Date : 07.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3928 OF 2019
IN
S.C. SUIT NO. 4586 OF 2008
(H.C.SUIT NO. 2677 OF 2008)
(CNR NO.MHCC01 0108142019 )
Mr. Mahendra K. Salian & Anr. .. Plaintiffs
Versus
Mr. Shashiant Nair & Ors. .. Defendants
Appearances :
Adv. Mr. J.K.Shah for plaintiff present.
Adv. Mr. Sushil Inamdar for Defendant No. 1 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 07.11.2019
ORDER
1. The plaintiffs have filed instant Notice of Motion for
recalling/ setting aside order dated 24.09.2019 passed by this
Court, dismissing the suit against defendant no. 1 and prayed for
restoration of the same.
2. It is contended by the plaintiff that he has filed suit for
declaration that the defendant no. 1 is trespassers in the suit
premises and seeking possession of the suit premises from
defendant no. 1.
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NM 3928-19 in S.C.Suit no. 4586-2008
H.C.Suit No. 2677 of 2008 2 Date : 07.11.2019
3. It is contended by the plaintiff that on 21.08.2019, PW1
tendered his Affidavit of Evidence but as the defendant no. 1 was
not appearing in the suit, the plaintiffs sought time to served the
Affidavit of Evidence. Therefore, the matter was posted on
24.09.2019 for compliance. However, due to inadvertence, the
copy of Affidavit was not served upon the defendant no. 1. Thus,
this court passed impugned order, dismissing the suit against the
defendant no. 1.
4. It is contended by the plaintiff that he has served the suit
summons to the defendant no.1. However, defendant no. 1 was
not appearing in the matter. Hence, it took time to served the
Affidavit upon the defendant no. 1 through private service. The
plaintiff prayed for setting aside the dismissal order as there is no
intentional delay in serving the defendant no. 1. The plaintiff
further contended that he has now served the defendant no. 1 and
defendant no. 1 is also present, therefore, the plaintiff prayed for
recalling order dated 24.09.2019.
5. The Notice of Motion is opposed by the defendant no. 1 by
filing reply. It is contended by the defendant no. 1 that this Court
vide, order dated 17.12.2018 directed the plaintiff to serve the
copy of Affidavit alongwith the documents but the plaintiff
intentionally did not serve the copies and tried to delay the matter.
Hence, he supported the impugned order.
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NM 3928-19 in S.C.Suit no. 4586-2008
H.C.Suit No. 2677 of 2008 3 Date : 07.11.2019
6. Heard both the sides. Perused Notice of Motion and reply. It
is not in dispute that this Court framed issues on 17.12.2018 and
directed the plaintiff to serve the defendant no. 1 who is the
contesting defendant. However, since then the service to
defendant no. 1 was not affected. Therefore, this Court passed
dismissal order. But now the defendant no. 1 served with the
Affidavit of Evidence alongwith the documents. Hence, in my
view, there would be no harm if, the impugned order is recalled
subject to the condition of payment of cost of Rs. 3,000/ to be
payable by the plaintiff to D.L.S.A. Thus, I proceed to pass the
following order.
ORDER
1. Notice of Motion No. 3928 of 2019 is hereby allowed in
terms of prayer clause (a) (b) subject to condition on
payment of cost Rs.3000/ by the plaintiff to D.L.S.A.
2. Plaintiff to bear cost of motion.
3. Notice of Motion No. 3928 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 07.11.2019 Greater Bombay.
Dictated on : 07.11.2019
Typed on : 07.11.2019
Draft Submitted on : 07.11.2019
Checked on : 11.11.2019
Signed on : 11.11.2019
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NM 3928-19 in S.C.Suit no. 4586-2008
H.C.Suit No. 2677 of 2008 4 Date : 07.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
11/11/2019 at 3.30 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
07/11/2019
JUDGMENT/ORDER signed by P.O.
on
11/11/2019
JUDGMENT/ORDER uploaded on 11/11/2019
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