Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4144/2019 ..1.. Suit No.555/2013
CNR No.MHCC010013772019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.4144 OF 2019
IN
CHAMBER SUMMONS NO.1386 OF 2018
IN
SUIT NO.555 OF 2013
Ms. Jyoti Vinod Agarwal nee
Urmila Nandalal Aggarwal .. Applicant
In the Matter between
Miss. Neha Uday Aggarwal .. Plaintiff
Versus
Mr. Uday Nandlal Aggarwal and others .. Defendants
Mr. Mikhail Dey h/f. Adv. Dinesh Tiwari, advocate for plaintiff.
Mr. N.H. Naik, advocate for applicant.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 28th January, 2020
ORAL ORDER
Notice of Motion is taken out by applicant for setting aside order
dated 26.07.2019 whereby chamber summons No.1386 of 2018 was
dismissed in default and to restore said chamber summons on the file of
this Court and also prayed for condonation of delay caused in taking
out present notice of motion.
2. It is the contention of applicant that she had taken out chamber
summons No.1386 of 2018 for impleading her as party defendant in the
Suit No.555 of 2013. After filing the reply, matter was referred for
mediation and after failure of mediation again chamber summons was
put for hearing to 05.03.2019. On that date, defendant No.3 took out
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notice of motion for condoning delay and matter was adjourned to
04.04.2019. Suit was kept under the caption for filing reply on
23.04.2019. It was transferred to Court Room No.9 and then again
transferred to this Court. On 26.07.2019, applicant was under
impression that her advocate will appear but he could not attend the
Court. She also did not attend the Court due to her personal household
work. Consequently, chamber summons was dismissed in default. Her
advocate informed her that necessary application is to be made for
recalling and setting aside impugned order. However, due to her illness
she had no occasion to meet her advocate. She was advised medical rest
for one month. So, she could not come to the Court to make an
application till 15.10.2019. In above circumstances there is no willful
delay or default. Accordingly, applicant has made prayers in above
terms.
3. Plaintiff filed her reply and opposed notice of motion. It is
contended that present notice of motion is taken out by the applicant
only to delay the prosecution of suit and remedy as sought by the
applicant cannot be granted by way of notice of motion. Accordingly,
she prayed for dismissal of notice of motion.
4. Perused notice of motion, affidavit in support of it, reply of
plaintiff and roznama of proceeding. Heard respective counsel for
parties.
5. At the outset, I would like to mention that as per Rule 187 of the
Bombay City Civil & Sessions Courts Rules, 1948 notice of motion can
be taken out seeking an interim relief. Prayers sought under present
notice of motion do not fall within the meaning of Chamber Work as
provided under Rule 43 of the above referred Rules. So, I do not find
merit in the objection of plaintiff on the count of maintainability of
present notice of motion.
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6. Chamber Summons No.1386 of 2018 was dismissed in default
on 26.07.2019. Applicant has taken out present notice of motion on
18.10.2019. Thus, it is clear that notice of motion is not taken out
within the prescribed period of limitation of 30 days from the date of
dismissal of chamber summons. Applicant has prayed for condoning
delay caused. She has assigned reason about her illness after passing of
impugned order which prevented her from meeting her advocate for the
purpose of moving present notice of motion. She has annexed copy of
medical certificate issued by the doctor of Inlaks General Hospital in
support of present notice of motion. I have gone through it. It shows
that applicant was suffering from fever during the period for
20.08.2019 to 25.08.2019 and she was advised bed rest. Possibility of
her not contacting advocate due to her illness cannot be ruled out. In
my view, reason assigned by her is sufficient to condone delay caused in
taking out present notice of motion. Therefore, I am inclined to
condone delay caused in taking out present notice of motion.
7. So far as nonattendance of applicant and her advocate on
26.07.2019 is concerned, she stated in her affidavit that due to her
engagement in personal household work on that date she could not
attend the Court and she was under impression that her advocate will
appear. She has not assigned any reason as to why her advocate did
not appear on the said date. But for negligence if any on the part of
advocate for party, party should not suffer. Considering reason assigned
by the applicant as sufficient for her nonappearance when the matter
was called on for hearing and in order to advance substantial justice, I
am inclined to allow present notice of motion by imposing certain costs
upon the applicant. Hence, pass following order:
ORDER
1. Notice of Motion No.4144 of 2019 is allowed and made absolute
in terms of prayer clauses (a) to (c) subject to payment of costs
of Rs.2000/ (Rupees Two Thousand only) to the plaintiff within
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period of two weeks from the date of this order.
Applicant is at liberty to deposit the costs payable to the
plaintiff in the court.
2. After payment of costs by the applicant Chamber Summons
No.1386 of 2018 be restored on the file of this Court at its
original number and stage.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 28.01.2020 Gr. Bombay
Typed on : 28.1.2020
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30.01.2020
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
28.01.2020
JUDGMENT/ORDER signed by P.O.
on
29.01.2020
JUDGMENT/ORDER uploaded on 30.01.2020
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