Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4353/2019 1 Summary Suit No.4779/2010
CNR No. MHCC010119602019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4353 of 2019
IN
SUMMARY SUIT NO. 4779 OF 2010
Kiran Narayan Talchekar )
C/o. Display House, 402 )
Veena Killedar Industrial )
Estate, Pais Street, Byculla, )
Mumbai – 400 001 )…... Plaintiff
Vs.
Santosh Dattaram Naik )
Residing at 7/323, Shivkiran )
C.H.S. Ltd., Shivaji Nagar, )
Dr. Annie Besant Road, )
Worli, Mumbai – 400 025. ) …....Defendant
APPEARANCE:
Ld. Adv. Mr. Bharat Punekar for plaintiff.
Ld. Adv. Mr. S.S. Redekar for defendant.
CORAM : HER HONOUR ADHOC JUDGE
C. P. JAIN (C.R.NO.40)
DATED : 29th NOVEMBER, 2019.
O R D E R
This Notice of Motion No.4353/2019 is taken out by
defendant praying to recall and set aside the order dated 17.10.2019
and to restore the Notice of Motion No. 2786/2017 on file.
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2. In the affidavit filed in support of Notice of Motion, it is
averred by defendant that he had met with an accident in the year
2017. Since then he was unable to travel anywhere without help of
other persons on account of aforesaid reasons. His advocate had
informed him that whenever need arises he has to attend the court and
that his advocate will take care of the matter as the said Notice of
Motion was pending. The Notice of Motion bearing No. 2786/2017 was
pending for hearing on 17.10.2019. However, his advocate was busy on
16.10.2019 to 18.10.2019 in Small Causes Court in C.R.No.20 in LE
Suit No. 95/08 for extension of interim reliefs. Therefore, his advocate
could not attend this court from 11.00 a.m to 12.15 p.m on 17.10.2019.
As he and his advocate were absent the Notice of Motion bearing
No.2786/2017 was dismissed for want of prosecution. At about 12.30
p.m his advocate had appeared in this court. At that time the advocate
for other side was also present. However, as already the Notice of
Motion was dismissed, it was informed to take appropriate steps.
According to defendant, there is no other malafide reason, in not
attending the court. As Notice of Motion No.2786/2017 was dismissed,
he has moved present Notice of Motion for calling the aforesaid order
dated 17.10.2019 and to restore the N/M No.2786/2017 to its file.
3. Plaintiff has resisted aforesaid notice of motion by filing his
reply overleaf. He has objected the Notice of Motion and in alternative
prayed for costs.
4. Heard both the learned advocates and perused the
proceeding. On perusal of the roznama, it reflects that the Notice of
Motion 2786/2017 was pending for hearing since 19.03.2018.
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Thereafter on 21.08.2019, defendant was granted last chance to argue
the aforesaid Notice of Motion. Thereafter, on 09.09.2019 none of the
parties ware present and matter was adjourned on 17.10.2019. Even on
17.10.2019, it appears that both the parties were absent when the
board was called out. The matter was kept back and thereafter at 12.05
p.m, learned advocate for plaintiff remained present. As defendant and
his advocate were absent, the Notice of Motion No.2786/2017 was
dismissed for want of prosecution.
5. The reasons made out in present Notice of Motion for
setting aside order dated 17.10.2019 and restoring the Notice of Motion
is that the learned advocate for the defendant was busy in Small Causes
Court from 16.10.2019 to 18.10.2019 in LE Suit No.95/2008 pending
on the file of C. R. No.20. Though this reason is made out which is
affirmed on oath, this cannot be ground for excuse of absenty of
defendant. However, reason which is made out in present notice of
motion is supported by the document at ExhibitA, which is the
application moved by present defendant in Small Causes Court at
Exhibit101 in LE & E Suit No.80/95/2008. It appears that the advocate
of the defendant was busy in getting the extension of interim relief in
the said LE & E Suit No.80/95/2008. The aforesaid reasons which are
made out on oath are not rebutted by any counter evidence on record.
There is formal objection on behalf of plaintiff. There is nothing on
record to doubt the aforesaid averments in the notice of motion. It is
expected that parties should be diligent with respect to their matter.
However on the ground of negligence, defendant cannot be denied to
pursue their Notice of Motion No. 2786/2017.
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6. It is appropriate that any notice of motion is decided on
merits. It will prevent multiplicity of proceedings.
7. Defendant needs to be given opportunity to proceed with
the Notice of Motion No. 2786/2017. At the most inconvenience caused
to plaintiffs can be compensated by saddling costs on defendant. For
aforesaid discussion, I proceed to pass following order.
ORDER
1. The Notice of Motion No. 4353/2019 is hereby allowed subject to
costs of Rs.500/(Rs. Five Hundred Only) to be paid by defendant
to plaintiff on or before next date.
2. Upon depositing the costs as per clause (1) of this order, the
order dated 17.10.2019 shall stand set aside and the Notice of
Motion No. 2786/2017 shall stand restored to its file.
3. The Notice of Motion No.4353/2019 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.40)
Date : 29.11.2019 City Civil Court, Gr. Mumbai
Dictated on : 29.11.2019
Transcribed on : 29.11.2019
Signed on : 17.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.12.2019, 11.21 am.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Shri. U. M. Mudholkar
C.R. No.48
Date of Pronouncement of
JUDGMENT/ORDER
29.11.2019
JUDGMENT/ORDER signed by
P.O. on
17.12.2019
JUDGMENT/ORDER uploaded on 21.12.2019
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