Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4244-2019 in SU-577-2016
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.4244 OF 2019
(CNR No.MHCC01-011622-2019)
IN
SHORT CAUSE SUIT NO.577 OF 2016.
(CNR No.MHCC01-001428-2016)
Ravindra Vitthal Pol }...PLAINTIFF.
Versus
Chintaman Mahadev Koli & Anr. }...DEFENDANTS.
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Shri.Abhijeet Barve, learned advocate for the plaintiff.
Shri.M.S. Singh, learned advocate for the defendants.
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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 13/12/2021)
1. By filing this Notice of Motion, plaintiff has claimed reliefs
as under;
a. The order of dismissal dtd.19/10/2019 passed by the Hon‘ble
Court in the Short Cause Civil Suit No.577 of 2016 may kindly be
set aside.
b. The Civil Suit No.577 of 2016 which was dismissed in default
by the order dtd.19/10/2019 be restored at its given stage and
plaintiff be permitted to take appropriate steps therein.
2. Read the affidavit filed in support of Notice of Motion and
reply endorsed on the Notice of Motion itself by learned advocate for
the defendants. Heard learned Shri.Abhijeet Barve advocate for the
plaintiff and learned Shri.M.S.Singh advocate for the defendants.
Perused the entire record.
3. Learned advocate for the plaintiff argued that advocate for
the plaintiff was busy in some other court on 19/10/2019 because of
which, said advocate could not remain present before this court on that
date. He argued that there was no intentional fault on the part of the
plaintiff in not attending the court on 19/10/2019 hence, suit may be
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restored as the Notice of Motion is taken out within 30 days from the
date of passing of the order of dismissal.
4. As against this, learned advocate for the defendants
vehemently opposed the Notice of Motion by submitting that several
opportunities were granted by the court to the plaintiff for adducing
evidence before passing the order of dismissal hence, since there is no
sufficient cause, the Notice of Motion is liable to be dismissed.
5. Admittedly, the suit was ordered to be kept for evidence
without written statement as per the order dtd.18/01/2019 and it came
to be dismissed in default on 19/10/2019 on account of failure of
plaintiff to adduce evidence. Apparently, there appears substance in the
argument of learned advocate for the defendants that sufficient
opportunities were given by the court to the plaintiff to adduce
evidence but the plaintiff had failed hence, suit is dismissed in default
however, it does not appear that there is any delay in taking out this
Notice of Motion for restoration of the suit as, admittedly, this Notice of
Motion is taken out within 30 days from the date of dismissal of the suit
in default. It does not appear that plaintiff has tried to gain any
disadvantage by letting his suit dismissed in default. Having regards to
those aspects, this court is of the opinion that it would be just to give an
opportunity to the plaintiff to contest the suit on merits. Interest of
justice will be protected if the prayers made in this Notice of Motion are
accepted by imposing certain costs on the plaintiff. Thus, an order.
O R D E R
Notice of Motion No.4244 of 2019 is allowed subject to
cost of Rs.1,000/- (Rupees One Thousand Only) in terms of its
prayer clauses (a) and (b).
Plaintiff shall pay the amount of cost either directly to the
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defendants or shall deposit it in the court within four weeks from
today. On depositing the cost as mentioned above by the plaintiff,
Suit No.577 of 2016 shall stand restored to its original stage and
it will be taken on board dtd.17/01/2022.
In case of failure of the plaintiff to pay/deposit the amount
of cost as mentioned above, this Notice of Motion shall be
deemed to have been dismissed.
Date : 13/12/2021. (P.P.RAJVAIDYA)
Dictated on : 13/12/2021. Judge, C.R.No.62,
Checked on : 13/12/2021. City Civil Court,
Signed on : 13/12/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
14.12.2021 at 2.50 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 13/12/2021
Order signed by P.O. on 13/12/2021
Order uploaded on 14/12/2021
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