Final Order 1

Order Details: Other
Pdf Text: IN THE COURT OF :COURT 14 ASST SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0104147/2019
Rukhsana Mohd. Ahsan Khan And Anr Suit St.No. 16866 of 2018 Vs
Abdulla Mohammed Shaikh And Anr
Date : 05102021
Business : Adv. S.H. Patel for plaintiffs present. Adv.
Ditendra Mishra for defts. present.
COMMON ORDER BELOW CH/SUM
NO.2003/2019, CH/SUM NO.2006/19 AND
N/M NO.4147/19 Heard both sides. On
26.08.2019, this Court passed an order to
dismiss in default draft N/M for want to
prosecution. This Court further directed to
proceed N/M no.489/19 without plaintiffs’
reply. 2. Ch/sum no.2006/19 is taken out
by plaintiff praying to condone the delay of
25 days in taking out N/M for setting aside
order passed on draft N/M. 3. Ch/sum
no.2003/19 is taken out by plaintiff for
setting aside order dated 26.08.2019
regarding N/M no.489/19 to proceed
without plaintiffs’ reply. 4. N/M
No.4147/19 is taken out by plaintiff to set
aside the order dated 26.08.2019
dismissing the draft N/M. 5. Above
Ch/summons and N/M are resisted by
defendants by filing their affidavits in reply.
6. Plaintiffs submit that they have filed draft
N/M praying for an order of injunction
restraining defendants from dispossessing
plaintiffs from the suit premises without
following due process of law. During
pendency of the suit, plaintiffs’ advocate
was suffering from renal disease and
undergone renal transplant twice. Plaintiffs
came to know about order dated
26.08.2019 on 25.09.2019 and therefore,
there is delay of 25 days in taking out
Ch/sum for setting aside an order dated
26.08.2019 and for restoration of draft
N/M. 7. Defendants submit that plaintiffs
are not participating in the proceedings
deliberately and intentionally. Plaintiffs
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have to explain delay of each and every day
in taking out the Ch/sum. But, plaintiffs
have failed to give sufficient cause for
condonation of delay of 25 days in taking
out the Ch/sum. 8. Considered the
submissions advanced on behalf of both
sides. On 26.08.2019, this Court has passed
an order to dismiss in default draft N/M
taken out by plaintiff for want of
prosecution. This Court has further directed
to proceed N/M No.489/19 without
plaintiffs’ reply. 9. By virtue of draft N/M,
plaintiffs were seeking temporary injunction
restraining defendants from dispossessing
them from the suit premises without
following due process of law. Considering
the nature of the relief claimed by the
plaintiffs, it would be expedient to set aside
the order directing dismissal of draft N/M
for want to prosecution. 10. Plaintiffs
submit that owing to illness of their
advocate, they could not file the
applications for setting aside the order
dated 26.08.2019 within stipulated period.
Plaintiffs have given sufficient cause for
delay in filing the Ch/sum to set aside the
order dated 26.08.2019. Defendants have
taken out N/M no.489/19 praying to reject
plaint as per Order 7 Rule 11 of C.P.C. Said
N/M would decide the tenability of the suit
and therefore, considering the principles of
natural justice, it would be just and proper
to allow plaintiffs to contest said N/M
no.489/19 on merits. In the result,
following order. ORDER 1. Delay for taking
out N/M for setting aside order dated
26.08.2019 regarding dismissal of draft
N/M is condoned. 2. The order dated
26.08.2019 regarding dismissal of draft
N/M for want of prosecution is set aside
and the draft N/M which is later on
registered as N/M No.3240/19 is restored.
3. The order dated 26.08.2019 directing to
proceed N/M No.489/19 without plaintiffs’
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reply is set aside. 4. Plaintiffs to file reply to
N/M No.489/19 on or before next date
without fail. 5. No order as to costs. 6.
Ch/sum No.2003/2019, Ch/sum
No.2006/19 and N/M No.4147/19 are
disposed of accordingly.
Nature of
Disposal
: ALLOWED
Disposal Date : 05102021
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