Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4551 OF 2019
IN
(DISPOSED OF) SUIT NO.1171 OF 2014
(CNR NO.MHCC01-012499-2019)
M/s. S. K. Translines Pvt. Ltd. ).. Plaintiff.
V/s.
Maharashtra State Road Transport
Corporation ).. Defendant.
Appearances :-
Ld. Adv. Mr. V. R. Patil for plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE V. V. PATIL
COURT ROOM NO.09
DATE : 1st March, 2024.
ORDER
Plaintiff has taken out present Notice of Motion for
restoration of suit No.1171/2014 by setting aside order dated
16.10.2019 dismissing the suit for default.
2. It is contended that issues were framed in the suit on
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11.09.2019 and the matter was adjourned for evidence to 15.10.2019.
However, due to some personal difficulties, he could not contact his
advocate for filing affidavit of examination-in-chief and he could not
attend the Court on 15.10.2019. His advocate also could not attend the
Court on that day due to health problem. Thereafter, matter was
adjourned to next date i.e. 16.10.2019 and on that day, suit came to be
dismissed for default as plaintiff failed to adduce evidence. It is
submitted that since plaintiff and his advocate were not present on
15.10.2019, they could not notice that matter was adjourned
immediately on next day. On 17.10.2019, advocate for plaintiff came to
know that, matter is dismissed in default. Thereafter, plaintiff has taken
out Notice of Motion which is well within limitation. The matter is
related to financial transaction/agreement. The suit is related with the
substantial claim of the plaintiff and deserves to be decided on merits
and not on technical grounds and hence, plaintiff prayed to allow the
Notice of Motion.
3. Defendant though duly served with Notice of Motion, failed
to appeared. Hence, Notice of Motion came to be proceed ex-parte
against defendant.
4. Perused the Notice of Motion & Affidavit in support of
Notice of Motion. The following points arise for my determination and I
have recorded my findings to them for the reasons stated below :-
Sr. No. POINTS FINDINGS
1. Whether order dated 16.10.2019
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thereby dismissing the suit for default in
suit No.1171/2014 is liable to be set
aside?
In the Affirmative.
2. What order? As per the final order
R E A S O N S
AS TO POINT NO.1 :
5. Heard Ld. Advocate for both sides. Perused record of the
suit. It can be gathered from the roznama that issues were framed in the
suit on 11.09.2019. Thereafter, matter was adjourned to 24.09.2019
and then to 15.10.2019 and then immediately to 16.10.2019. On
16.10.2019, since plaintiff failed to adduce evidence, suit came to be
dismissed for default. It can be gathered that suit came to be dismissed
within very short period of time after framing issues without giving
much opportunity to the plaintiff to lead evidence. The reasons for not
filing affidavit of evidence give by the plaintiff appears to be genuine.
Therefore, the order of dismissing the suit dated 16.10.2019 is liable to
be set aside as it is necessary to decide the matter on merits. Therefore,
I answer point No. 1 in affirmative and I proceed to pass the following
order :-
ORDER
1. Notice of Motion No. 4551 of 2019 in (Disposed
of) Suit No.1171 of 2014 is hereby made
absolute.
2. Order dated 16.10.2019 thereby dismissing the
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suit No.1171/2014 for default is hereby set aside
and suit No.1171/2014 is hereby restored to its
original position.
3. Notice of Motion stands disposed of accordingly.
(Order dictated & pronounced in open Court)
(V. V. PATIL)
Judge, City Civil Court,
Dated : 01.03.2024 C.R. No.09, Gr. Mumbai
Dictated on : 01.03.2024
Transcribed on : 01.03.2024
Signed on : 01.03.2024
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“Certified to be true and correct copy of the original signed order”.
02.03.2024
at about 16.30 p.m.
(Manisha D. Hirole)
Stenographer (Grade-I.)
Court Room No.09, Gr. Mumbai.
Name of the Hon'ble Judge : HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Order : 01.03.2024
Order signed by Hon'ble Judge on : 02.03.2024
Order uploaded on : 02.03.2024
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