Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4278 OF 2019
IN
SUIT NO. 627 OF 2014
Prasenjit Bag Ramprada Bag ].. Plaintiff.
V/s.
1. The Maharashtra Housing and ]
Area Development Authority ]
and other. ]..Defendants.
Advocate Mr. Redekar for the plaintiff.
Advocate Mr. Pathak h/f Advocaate Mr. Kandekar for defendant No.1.
Advocate Mr. G. B. Naik for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 30th APRIL, 2022
ORDER
The Notice of Motion is filed for recalling and setting aside
the order passed by this Court dismissing the Suit No.627 of 2014 dated
10/10/2019. The present Notice of Motion is taken out by the plaintiff
on 08/11/2019.
2. It is the case of the plaintiff that the Suit is filed for
declaration that Plaintiff is entitled to the permanent alternative
accommodation. The Notice of Motion taken out by the plaintiff for
interim injunction was dismissed by the Court on 28/07/2015. The
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matter was fixed for framing of issues. Hence, learned Advocate for the
plaintiff told plaintiff that he will inform him after framing of issues.
The matter was in the caption of framing of issues on 10/06/2019. On
that day, issues were framed and the matter was listed for recording of
evidence. However, as the plaintiff and his Advocate were absent on
10/06/2019, they were unaware of the fact that issues were framed in
the matter.
3. It is the case of the plaintiff that thereafter, the matter was
adjourned to 12/07/2019, 07/10/2019 and 09/10/2019 for leading
evidence by the Plaintiff. Plaintiff states that he visited the office of his
Advocate for wishing him for Diwali on 05/11/2019. At that time, he
asked the junior Advocate regarding the status of the suit. After
checking online the junior Advocate informed plaintiff that the suit
came to be dismissed on 10/10/2019. Thereafter, the plaintiff consulted
the present Advocate and took out the present Notice of Motion.
4. It is the case of the plaintiff that he relied upon the
assurance by his Advocate and did not attend the matter personally.
Hence, the Plaintiff has taken out the present Notice of Motion for
restoration of the Suit.
5. Defendant No. 2 has filed reply to the Notice of Motion and
has denied all the contents thereof. It is stated that the Plaintiff has not
given any sufficient reason for his absence and the absence of his
Advocate for four years. The plaintiff has no locus to file the Suit as well
as the present Notice of Motion. It is further stated that the plaintiff can
not escape from his responsibility to attend the matter though he has
appointed an Advocate. The assurance of the Advocate does not give
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any right to plaintiff to sleep over his rights. He could have checked the
Roznama of the matter online. It is further stated that the plaintiff failed
to ask his Advocate about the status of the matter for the period of six
years is not acceptable.
6. Defendant No. 2 has further stated that the Plaintiff did not
attend the matter since the year 2016 though he was aware that the
matter is posted for hearing. Sufficient opportunity was given to the
Plaintiff to lead evidence. The plaintiff was not willing to try the suit
and killed the time of the Court. He was not interested in the matter.
For all the above reasons the Defendant no. 2 has prayed for dismissal
of the suit.
7. I have gone through the record and proceeding. I have
heard both the learned Advocates at length.
8. As per the Roznama of the matter the last appearance of
the learned Advocate for the plaintiff in the matter was on 24/07/2015.
Thereafter, neither plaintiff not his lrd Advocate appeared in the matter
at any point of time.
9. The issues were framed on 10/06/2019. The matter was
listed for list of witnesses and adjourned to 09/10/2019. As no list of
witnesses was tendered on that day the matter was posted for the
evidence of plaintiff on 09/10/2019. On that day, plaintiff was absent.
None was present on his behalf. No adjournment application was filed.
Hence, the matter was listed on 10/10/2019 for dismissal order. On
10/10/2019, the suit came to be dismissed for default as the plaintiff
was absent and no adjournment application was filed.
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10. This shows that the matter was listed for the first time for
issues on 28/09/2015, but actually issues were framed on 10/06/2019.
The matter was listed for the evidence of the Plaintiff for the first time
on 09/10/2019. It was adjourned on the next day for hearing. On both
the days, the Plaintiff was absent and no adjournment application was
filed. It appears that when it took almost more than three years to
frame the issues, the Plaintiff could have got some more opportunity to
lead evidence. The suit came to be dismissed after two consecutive
dates of hearing.
11. Plaintiff has come with the case that he relied upon the
assurance of his advocate that he will inform Plaintiff once the issues
are framed. It appears that infact, the learned Advocate for Plaintiff
failed to inform the Plaintiff. However, it was possible for the plaintiff to
track the matter atleat once in a month online or by calling his
Advocate. Therefore, it appears that the plaintiff was equally lethargic
in pursuing the matter. It is well settled that the litigant should not be
allowed to suffer due to the fault of his Advocate. Hence, in my
considered opinion, Plaintiff deserves one opportunity to get his Suit
tried on merits. He has shown sufficient cause for restoration of the suit
to its original stage.
12. There is delay caused in hearing of the Suit due to the
conduct of Plaintiff. Hence, it needs to be compensated in the terms of
money. In view of the above discussion, I proceed to pass the following
order.
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O R D E R
1. Notice of Motion No. 4278 of 2019 is allowed subject
to payment of costs Rs. 2,500/-to be paid by the Plaintiff
to each of the defendants
2. Suit No. 627 of 2014 be restored to its original stage
after payment of costs by the Plaintiff as above.
3. Plaintiff shall bear the costs of this Notice of Motion.
4. Notice of Motion no. 4278 of 2019 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date:30.04.2022 Gr.Mumbai.
Dictated on: 30.04.2022
Typed on : 30.04.2022
Signed on : 02.05.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
RE-UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06.05.2022 AT 2.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of
Judgment/Order
30.04.2022
Judgment/Order signed by P.O. on 02.05.2022
Judgment/Order re-uploaded on 06.05.2022
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