Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM-4070-2019 in SU-2446-2015
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.4070 OF 2019
(CNR NO.MHCC01-011190-2019)
IN
SC SUIT NO.2446 OF 2015.
(CNR NO.MHCC01-009737-2015)
Preeti Muralidhar Acharya and Ors. }...PLAINTIFFS.
Versus
Ravi Shamrao Kulkarni and Ors. }...DEFENDANTS.
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Shri.Redekar, learned advocate for the plaintiffs.
Shri.Gharat, learned advocate for defendant Nos.1 and 2.
None appeared for defendant Nos.3 and 4.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 25/03/2022)
1. This Notice of Motion is taken out by the plaintiffs for
seeking following reliefs;
a) that this Hon’ble Court be pleased to set aside/recall the
Order dated 23/09/2019 passed by this Hon’ble Court (HHJ Shri
K.P.Nandedkar) dismissing the above Suit in default(Exhibit ‘’A’’
to the Affidavit in Support) and the above Suit be restored on file,
to be heard on merits;
b) that this Hon’ble Court be pleased to restore Interim Order
dated 04/08/2017 passed by this Hon’ble Court while disposing
off the Notice of Motion No.111 of 2016 (Exhibit “B” to the
Affidavit in Support) on such terms and conditions as this Hon’ble
Court may deem fit;
2. Read the affidavit filed in support of the Notice of Motion
and affidavit in reply filed by defendant Nos.1 and 2. None appeared for
other defendants. Heard learned Shri.Redekar advocate for the plaintiffs
and learned Shri.Gharat advocate for defendant Nos.1 and 2. Perused
the entire record.
3. Learned advocate for the plaintiffs argued that plaintiff
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No.1 is a Housewife and Senior Citizen and she could not attend the
court due to her ailments. He argued that affidavit of documents was
filed in the suit on 23/07/2018 after which, issues are framed by the
Court on 17/09/2018. He argued that affidavit of PW-1 could not be
filed on 27/11/2018 because of her illness & the matter was adjourned
to 04/03/2019 on which date, neither the plaintiff could remain present
in the court nor her advocate as he was held up before Hon’ble High
Court hence, matter was adjourned to 20/04/2019 on which date,
matter was transferred to this court on the ground that plaintiff and
defendant No.1 are senior citizens. He argued that suit is dismissed in
default on 23/09/2019 but there was no intentional fault on the part of
plaintiffs in not filing the evidence when the suit was called on for
hearing hence, the suit may be restored.
4. As against this, learned advocate for defendant Nos.1 & 2
argued that Notice of Motion taken out by the plaintiffs is not
maintainable, entire suit is frivolous and mischievous due to which, the
Notice of Motion is liable to be dismissed.
5. I have gone through the Record and Proceedings of the
suit. Admittedly, suit was initially pending in C.R.No.4 which has been
transferred to this court at evidence stage. Roznama dtd.04/07/2019
shows that advocate for plaintiffs was present on that date and matter
was adjourned to 23/09/2019 on which date, it came to be dismissed in
default for want of prosecution. This Notice of Motion for restoration of
the suit is taken out on 18/10/2019. Apparently, Notice of Motion is
taken out within limitation after dismissal of the suit in default.
6. Plaintiff No.1 is a Senior Citizen. It does not appear that
there was intentional fault on the part of the plaintiffs in not filing
evidence when the suit was called on for hearing. Having regards to the
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fact that Notice of Motion is taken out without any delay, this court is of
the opinion that it is necessary to give opportunity to the plaintiffs to
contest the suit on merits. Defendant Nos.1 & 2 have contended that
suit is false. It is not necessary to consider defendants' said contention
while deciding this Notice of Motion. No doubt, defendants are not at
fault but interest of justice will be protected if certain costs are imposed
on the plaintiffs while accepting their prayer for restoration of the suit.
7. So far as the prayer made to restore order dtd.04/08/2017
passed in Notice of Motion No.111/2016 is concerned, said order was
for restraining the defendants from creating third party interests in the
suit premises. There is nothing in the affidavit filed in support of the
Notice of Motion that defendants have yet not created third party
interests in the suit premises. Plaintiffs can take out fresh Notice of
Motion for the said relief after the suit is restored hence plaintiffs are
not entitled for the relief claimed in terms of prayer clause-b of this
Notice of Motion. Thus, an order.
O R D E R
Notice of Motion No.4070 of 2019 is partly allowed in
terms of prayer clause(a) only subject to cost of Rs.2,000/-
(Rupees Two Thousand Only).
Plaintiffs shall either pay the amount of cost directly to the
contesting defendants or shall deposit it in the court within two
months from today.
On payment/deposit of the cost as above by the plaintiffs,
Suit No.2446 of 2015 shall stand restored to its original stage.
In case of failure of the plaintiffs to pay/deposit the cost as
mentioned above, this Notice of Motion shall be deemed to have
been dismissed.
Date : 25/03/2022. (P.P.RAJVAIDYA)
Dictated on : 25/03/2022. Judge, C.R.No.62,
Checked on : 25/03/2022. City Civil Court,
Signed on : 25/03/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
31/03/2022 at 2.45 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 25/03/2022
Order signed by P.O. on 25/03/2022
Order uploaded on 31/03/2022
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