Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 4464-19 in Suit no. 2806-15 1 Date : 25.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4464 OF 2019
IN
SUIT NO. 2806 OF 2015
(CNR NO.MHCC010122342019 )
Mrs. Rahul Enterprises .. Plaintiff
Versus
Mohammad Aslam Chauhan .. Defendant
Appearances :
Ld. Adv. Jagdish Nagar for plaintiff.
Ld. Adv. Wasim Ansari for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 3
Date : 25.08.2021
ORDER
1. The defendant has filed instant Notice of Motion for recalling
of order dated 17.10.2019 passed in Notice of Motion No. 3695 of
2018 on the ground that same was decided without granting him
opportunity of hearing.
2. It is contended by the defendant that the plaintiff filed
present suit for recovery of amount of Rs. 12,15,960/ together
with interest @ 24% p.a. against the defendant. The defendant
resisted the suit by filing Written Statement and objected the suit
as well as Notice of Motion on preliminary issues. The defendant
accordingly filed Notice of Motion No. 3695 of 2018 for rejection
of plaint.
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NM 4464-19 in Suit no. 2806-15 2 Date : 25.08.2019
3. It is further submitted that the defendant had appeared on
most of occasions, but on 17.10.2019 he could not remained
present due to personal difficulty. However, this Court decided
the Notice of Motion in his absence on merits. Therefore, the
defendant claimed that he constrained to file present Notice of
Motion as per provisions of Order 9 Rule 13 of Code of Civil
Procedure.
4. It is contended by the defendant that the impugned order is
passed without hearing him and thus, against principle of natural
justice & same needs to be set aside. Therefore, he prayed for
allowing present application to recall the impugned order.
5. The Notice of Motion is opposed by the plaintiff on the
ground of maintainability and jurisdiction of this Court. It is
contended that this Court do not have power to recall its own
order. The defendant is having remedy to challenge the
impugned order by way of Appeal from order before the Hon'ble
High Court. Moreover, the impugned order is just, legal and
proper and no interference is required. Therefore, the plaintiff
prayed for rejection of the Notice of Motion.
6. Heard both the sides. Perused Notice of Motion, reply and
impugned order. It appears that on 17.10.2019, the defendant
was absent. However, my Predecessor decided Notice of Motion
No. 3695 of 2018 filed by the defendant on merit. The contention
of the defendant that he has filed present application under Order
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NM 4464-19 in Suit no. 2806-15 3 Date : 25.08.2019
9 Rule 13 of Code of Civil Procedure, however, as per order 9 Rule
13 of Code of Civil Procedure, the judgment and decree which is
passed Exparte can be set aside, on sufficient cause being shown
by defendant. Admittedly, the Notice of Motion No. 3695 of 2018
was interim application and there is no decree. Hence, I am of the
view that the provision of Order 9 Rule 13 of Code of Civil
Procedure, will not be attracted.
7. Ld. Advocate for Defendant further contended that as per
Section 141 of Code of Civil Procedure, this Court can consider his
case as word proceeding used in the above section would include
proceeding under Order IX.
8. The defendant in support of his argument placed reliance on
judgment of Hon'ble Apex Court reported in (2000) 3 SCC 54 in
case of G.P. Shrivastava V/s. R. K. Rahijada and Ors. In fact, the
said case referred to the final judgment and decree and not to the
orders passed on interim application. Hence, with due respect, the
aforesaid case law would not be helpful to the case of defendant
nor the case of Defendant would be considered u/sec. 141 of Code
of Civil Procedure.
9. Ld. Advocate for defendant further contended that in view of
Section 151 of Code of Civil Procedure, the Court can exercise its
inherent powers for ends of justice or to prevent abuse of process
of Court. The impugned order passed without hearing him.
Therefore, he prayed that this Court should exercise the power
u/sec. 151 of Code of Civil Procedure.
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NM 4464-19 in Suit no. 2806-15 4 Date : 25.08.2019
10. Although, defendant applied under order 9 of Rule 13 of
Code of Civil Procedure but, looking to the pleadings of the Notice
of Motion and its prayer it appears that the plaintiff is seeking
review of impugned order under section 114 of Code of Civil
Procedure. The ground assigned for review is that on the day the
impugned order passed, the defendant and his Advocate was in
personal difficulty. It is well settled law that review of an order
can be asked for in case of :
(i) Discovery of new and important matter or evidence which after
the exercise of due diligence, was not within the knowledge of the
party and it could not be produced by him at the time when the
decree or order was passed,
(ii) Mistake or error apparent on the face of the record, or for any
other sufficient reasons.
11. Here, in the present case there is no question of discovery of
new and important matter or evidence nor the question of error on
the face of record. The personal difficulty of the defendant and his
Advocate is sighted as sufficient reasons of their nonappearance.
It is well settled that the requirement of sufficient reasons for the
review means a reason sufficient on grounds atleast analogous to
those specified in Order 47 Rule 1. The personal difficulty that too
without disclosing its nature can never be a sufficient reason
analogous to the reasons of review mentioned in Order 47 Rule 1.
I find support of the aforesaid view from the judgment of Madhya
Pradesh High Court reported in 1952 SCC online MP 31 in case
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NM 4464-19 in Suit no. 2806-15 5 Date : 25.08.2019
of Chhattardas Guru Raghunath Das v/s Keshavdas Guru
Bikaridas.
12. It is well settled law that power under section 151 of the
Code of Civil Procedure will have to be used with circumspection
and care only where it is absolutely necessary, when there is no
provision in the Code governing the matter. In the present case, I
do not find any circumstance to invoke power u/sec. 151 of the
Code of Civil Procedure. Therefore, in view of aforesaid discussion,
in my view, the Notice of Motion is devoid of substance and same
needs to be dismissed. Thus, I proceed to pass the following order.
ORDER
1. Notice of Motion No. 4464 of 2019 is hereby dismissed.
2. Parties to bear their own cost
3. Notice of Motion No. 4464 of 2019 stands disposed of
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 25.08.2021 Greater Bombay.
Dictated on : 25.08.2021
Typed on : 25.08.2021
Draft Submitted on : 26.08.2021
Checked on : 27.08.2021
Signed on : 27.08.2021
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NM 4464-19 in Suit no. 2806-15 6 Date : 25.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
27/08/2021 at 3.00 p.m (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
25/08/2021
JUDGMENT/ORDER signed by P.O.
on
27/08/2021
JUDGMENT/ORDER uploaded on 27/08/2021
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