Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4549/2019
MHCC010124952019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 4549 OF 2019
IN
NOTICE OF MOTION NO.707 OF 2016
IN
SUIT NO. 3295 OF 2014
1. Vishwanath S/o Late Matasharan
Yadav & Ors. ...Plaintiffs
Vs.
Vaikunthnath s/o Matasharan Yadav ...Defendant
Appearance :
Adv. Mr. C.B. Yadav for the plaintiffs.
Adv. Mr. Jaljit Sharma for the defendant.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 17th February, 2023
O R D E R
The plaintiffs through their C.A. have taken out this Notice
of Motion to condone the delay and to set aside the order dated
07.01.2016 and to restore the suit.
2. It is the contention of the plaintiffs that they have filed the
Suit No.3295 of 2014 for declaration and injunction. As suit summons
could not be served, suit was dismissed on 07.01.2016. Thereafter, the
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plaintiffs took out notice of motion No.707 of 2016 for restoration of
the suit. It is the contentions of the plaintiffs that due to negligence of
previous advocate summons could not be served on the defendant. In
the result thereof, suit came to be dismissed on 07.01.2016. Plaintiff
No.5 who is C.A. of the plaintiffs is serving in Railway Department. He
was in contact with the plaintiffs' previous advocate. He was informed
about dismissal of the suit on 07.01.2016. There was delay of 10 days
in taking out the notice of motion No.707 of 2016 for restoration of the
suit. Due to illness, the plaintiffs' C.A. was not able to approach the
advocate within time. At the time of hearing of motion, the Court came
to the conclusion that medical report shows that C.A. of the plaintiffs
was suffering from illness and could not attend the Court. It was also
observed that there was no reason for C.A. of the plaintiffs to remain
absent on 07.01.2016. Due to illness and due to fact that said C.A. was
serving in Railway Department, he was unable to attend the Court, this
fact has not been mentioned in NM No.707 of 2016. The advocate for
the plaintiffs had made submission that he will amend the notice of
motion to point out the fact that the plaintiffs' C.A. is serving in
Railway, observing that request for amendment of the notice of motion
cannot be considered, the Court was pleased to dismiss the motion with
liberty to file fresh motion therefore, the plaintiffs have filed this
motion.
3. It is further contention of the plaintiffs that the plaintiffs'
C.A. is working with Railway Department, due to sickness he was under
medical treatment since 30.11.2015 to 06.12.2015. He was required to
attend his office immediately on 07.12.2015. Leave was not granted to
him therefore, he was unable to seek leave to attend the hearing on
07.01.2016. His advocate was also absent and unable to attend the
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hearing of the suit. Under these circumstances, suit came to be
dismissed on 07.01.2016. After sanction of leave the plaintiffs' C.A.
came to Mumbai on 15.02.2016 and visited his Advocate. They
immediately prepared notice of motion for setting aside the order of
dismissal of the suit and filed notice of motion No.707 of 2016.
4. It is further contention of the plaintiffs that due to non co
operation and negligence of previous advocate, due to sickness and due
to non sanction of leave, the plaintiffs' C.A. was unable to attend the
hearing of the suit and to take necessary steps. On these grounds, the
plaintiffs requested to condone the delay to set aside the order of
dismissal of suit and to restore the suit to its original file.
5. Read the service affidavit dated 13.04.2022. The
defendant's son has received copy of motion. Read the roznama dated
16.04.2022, it is observed that notice is properly served on the
defendant. Nobody appeared for the defendant. Hence, notice of
motion is proceeded without reply of defendant. Order to that effect is
already passed on 19.11.2022.
6. Heard learned advocate for the plaintiffs. No argument of
the defendant.
7. Suit No.3295/2014 has been dismissed on 07.01.2016. It
is also an admitted fact that notice of motion No.707/2016 for
restoration of suit was taken out by the plaintiffs. It is also not disputed
that said motion was dismissed on 22.10.2019 with liberty to file fresh
notice of motion. Accordingly, the plaintiffs have filed this motion for
restoration of suit No.3295/2014 to its original file. It is the contention
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of the plaintiffs that the plaintiffs have appointed plaintiff No.5 as C.A.
of the plaintiffs, who was serving with the Government of India,
Railway Department as RPF and who was looking after this case. After
dismissal of the suit, he contacted his advocate from whom he got
knowledge that suit has been dismissed on 07.01.2016. It is the
contention of the plaintiffs' C.A. that due to his illness, he was unable to
contact his advocate. Due to illness and due to his service, the plaintiffs'
C.A. was unable to attend the hearing of the case. It is further
contention of the plaintiffs' C.A. that due to sickness he was under
medical treatment since 30.11.2015 to 06.12.2015. He was required to
attend the office on 07.12.2015. Leave was not granted to him
therefore, he was unable to attend the hearing of the case on
07.01.2016. On 15.02.2016 he approached his advocate and filed
notice of motion No.707/2016 for restoration of the suit. Said notice
came to be dismissed on 22.10.2019 granting liberty to the plaintiffs to
file fresh motion including all the grounds. Therefore, considering the
reasons stated in the motion and the reason of illness and reason of not
granting leave by the office of the plaintiffs' C.A., the delay in filing
motion is required to be condoned. Medical certificate filed in record
and proceeding of notice of motion No.707/2016 supports the plaintiffs'
contention. Therefore, considering the reasons of illness and service
commitment in RPF, the plaintiffs are able to show the sufficient cause
to set aside the order of dismissal of suit for default. Hence, I pass
following order:
ORDER
1. Notice of Motion No.4549 of 2019 is allowed
subject to costs of Rs.5000/ (rupees five
thousand).
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2. Delay in filing notice of motion is condoned .
3. Order dated 07.01.2016 dismissing Suit
No.3295/2014 is set aside.
4. Out of the amount of costs, Rs.2500/ shall be
deposited with legal aid and amount of
Rs.2500/ shall be paid to the defendant.
5. On compliance of order as to payment of
costs, Suit No.3295/2014 shall be restored
to its original file.
6. Notice of Motion No.4549/2019 is disposed
of accordingly.
Date : 17/02/2023 (Rajesh A. Sasne)
Dictated on : 17/02/2023. Judge, C.R.No.62,
Transcribed on : 18/02/2023. City Civil Court,
Signed on : 20/02/2023.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
21.02.2023 at 11.30 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 17/02/2023
Order signed by P.O. on 20/02/2023
Order uploaded on 21/02/2023
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