Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4342/19(Suit 2418/12)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 4342/2019
(CNR No.MHCC01-011939-2019)
IN
S.C. SUIT NO.2418/2012
Smt. Shashikala Pai ..Plaintif
V/s.
1. Shri Gajanan Ramakant Desai
2. Smt. Sundanda w/o. Late Shri Ramakant
Baburao Desai,
3. Smt. Purnima Ashok Prabhu
4. Dr. Rajendra Anand Keni
5. Miss Radhika R. Keni
6. Miss Devika R. Keni ..Defendants
Appearance:-
Adv. Mr. Pai for plaintif.
Adv. Mr.Suresh Gole for defendants no.1,2 and 4 to 6.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 6.2.2020.
ORAL ORDER
1. Heard Ld. Counsel for plaintif and defendants
no.1,2 and 4 to 6 on the notice of motion.
2. It is submitted by Ld Counsel for the plaintif that,
present Motion is taken out by the plaintif for condonation of
delay of 200 days in taking out the Notice of Motion (N/M) and
for setting aside order dated 16.3.2019, dismissing the suit in
default and for restoration of the same along with restoration
of ad-interim orders dated 10.9.2012 and 10.1.2013 in the
Notice of Motion No.2599/2012.
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3. This Motion is supported by an afdavit of plaintif
no.1 Smt. Shashikala Pai.
4. Defendants no.1,2 and 4 to 6 have opposed the
Motion by submitting afdavit in reply dated 6.1.2020. Seen
and considered the same. Ld. Counsel for the defendants
submitted that, the delay for taking out the Motion is of 240
days and not of 200 days as mentioned in the Motion. He has
strongly opposed the Motion and submitted that, merely
condoning of delay is not sufcient to restore the Suit
dismissed on 16.3.2019. It is submitted that as per amended
provisions of CPC, a ground that advocate for plaintif was
engaged in another court cannot be a ground for explaining
his absence before the court. The plaintif has been indiferent
in the matter and no sufcient grounds are stated in the
Motion for setting aside the dismissal of the suit. It is not
proper for a litigant to blame his advocate. Such submission
cannot be accepted. Under the above circumstances the
Motion taken out by the plaintif is liable to be dismissed.
5. On the other hand, Ld. Counsel for the plaintif has
relied on the afdavit in support of the Motion and
accompanying documents vide Exhs.A to D fled with the
Motion. He submitted that, during pendency of the Suit, the
plaintif had taken out N/M 2599/2012 and N/M 2713/2012.
After pleadings were complete, this court had heard both sides
on the N/M 2599/12 and partly allowed the N/M granting relief
to the plaintif vide order dated 10.1.2013. In view of death of
defendant no.2, the N/M 2713/12 had become infructuous.
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6. Ld. Counsel for the plaintif further submitted that,
the suit was fxed for framing of Issues on 27.9.2018. Issues
were framed by the court on 17.12.2018. Ld Counsel for the
plaintif was attending the matter from 10.10.2012 to
10.8.2018 regularly. On 16.3.2019, when the matter was
called out, Ld. Advocate for the plaintif was absent being
engaged in another court and could not attend the matter. The
plaintif was present and was informed by a clerk that the Suit
was adjourned but this aspect could not be confrmed by her
or the clerk.
7. It is submitted that, the plaintif had temporarily
shifted to Goa due to her professional commitments, therefore
was unable to attend the matter and instruct her advocate
regarding leading evidence in the case or taking out Motion.
Under the above circumstances, the delay, which has taken
place in taking out the Motion, is due to unavoidable
circumstances and not intentional one. It needs to be
condoned in the interest of justice as the matter is highly
contested and the plaintif has good case on merit also.
8. I have gone through the record of the case and
Roznamas from 10.10.2012 to 10.7.2018 and from 17.12.2019
till 16.3.2019 when the suit was dismissed. As per Roznama,
the court had framed issues on 17.12.2018 vide Exh.10. On
6.3.2019, neither parties were present, hence matter was kept
for dismissal on 16.3.2019. On 16.3.2019, nobody was
present in the morning when the matter was called. At 11.50
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am also both the parties were absent. Hence suit was
dismissed for want of prosecution.
9. It can be seen that, prior to framing of Issues, the
parties and their advocates were attending the matter in due
course but after framing of Issues only on 16.3.2019 neither
the parties were present and, the suit was dismissed. It also
appears that, the suit is hotly contested by the parties.
Therefore, it would be just and proper to allow the Motion by
condoning the delay subject to costs on the count of delay, to
meet the ends of justice. Hence, following order:-
ORDER
1. Notice of Motion No.4342/2019 is hereby
allowed and made absolute subject to plaintif
paying costs of Rs.5,000/- to the defendants
no.1,2 and 4 to 6/ depositing the same in the
court within four weeks from today.
2. If the above directions are complied with by
the plaintif, Suit No.2418/12 along with
Notice of Motion No.2599/12 and order
passed thereon shall stands restored.
Notice of Motion is disposed of accordingly.
(V.V. Vidwans)
Date: 6.2.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 6.2.2020
Transcribed on : 6.2.2020
Draft given on 6.2.2020.
Signed by HHJ on : 7.2.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 7.2.2020
TIME: 5.15 pm. (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 6.2.2020
Judgment/ order signed by P.O on 7.2.2020
Judgment/ order uploaded on 7.2.2020
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