Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.4649 of 2019
CNR:MHCC010127212019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.4649 OF 2019
IN
SUIT NO.4475 OF 2009
1. Darshan Kaur Ishar Singh & Anr. .. Plaintiffs
V/s.
1. Municipal Corporation for
Greater Mumbai and Ors. .. Defendants
Appearance:
Plaintiffs in person.
Adv. Satish More for defendant No.2.
Adv. Smt. Vidya Vyavahare for MCGM/ defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 12.07.2022
ORDER
1 This Notice of Motion is taken out by the plaintiff for
condonation of delay, if any and setting aside the order
dt.04/10/2019 passed by this Court dismissing Chamber Summons
No.2079 of 2017 for want of prosecution and for restoring the
same to the file.
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2 The Corporation/defendant No.1 has not filed reply in
writing but orally opposed the same. The defendant No.2 has filed
reply opposing the grant of relief prayed in the Notice of Motion.
3 Heard plaintiff in person, Adv. for defendant No.1 and
defendant No.2. Perused the record.
4 The plaintiff has made submission that he has filed a
Chamber Summons(L) No.1478 of 2012 in the Bombay High Court
Suit No.2783 of 2009 while said suit was before Hon'ble High
Court where it was originally filed. Said Chamber Summons was
filed to enhance the valuation of the suit as the earlier valuation
was made under inadvertent misconception under a wrong Section
of Bombay Court Fees Act. Before said Chamber Summons could
be heard and decided by the Hon'ble Bombay Court, it got
transferred to this City Civil Court due to change of pecuniary
jurisdiction in the year 2012 and the suit got renumbered. The
defendant No.1, 3, 4 and 5 have not filed reply and the defendant
No.2 has filed the reply after a long time by taking several
adjournments. Even the copy of reply of defendant No.2 has not
been served on the plaintiff. However, the plaintiff could not
appear before the Court on dt.04/10/2019 for genuine reason and
the Chamber Summons got dismissed for want of prosecution.
The plaintiff No.2 was in Nanded in the first week of October 2019
for paying obeisance at the Gurudwara and booked railway tickets
from Nanded to Mumbai for dt.03/10/2019 in order to attend this
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matter. However, due to his physical unfit condition, he could not
travel on dt.03/10/2019 to attend the Court on dt.04/10/2019.
On the same date, the Chamber Summons was dismissed. The
plaintiff is having a strong case on merit and the Chamber
Summons is necessary to be decided on merit. The plaintiff is
appearing in person regularly and after dismissal of Chamber
Summons, he moved this Notice of Motion at the earliest
opportunity he got. The delay is not intentional. Hence, by
condoning the delay, Chamber Summons may be restored by
setting aside the order of dismissal in default.
5 The defendant No.2 while opposing the Notice of
Motion has submitted that the plaintiff is not entitled to get the
Chamber Summons restored as the order of dismissal was passed
rightly. The record shows that the defendant No.2 has filed reply
to the Chamber Summons on dt.03/04/2019, but the plaintiff
deliberately did not obtain the copy of the same from Court and at
no point of time, he had communicated with defendant No.2
demanding the copy of reply. He was absent on all dates viz.
3/4/2019, 17/06/2019, 28/06/2019 and 04/09/2019. The Court
had given enough time to the plaintiff to argue the Chamber
Summons for which last chance was given on dt.04/09/2019 to
argue the matter on dt.04/10/2019. Said time was not availed by
the plaintiff and therefore, the Chamber Summons was dismissed
for want of prosecution. The Railway Ticket produced on record by
the plaintiff has been booked from Mumbai and the plaintiff has
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not established that it was booked from Nanded. He is a habitual
person, well versed for delaying the proceedings. No medical
certificate is produced on record to show that due to medical
unfitness, the plaintiff could not appear before the Court for
arguments. Hence, the Chamber Summons which was rightly
dismissed for want of prosecution need not be restored.
6 I have perused the record and affidavits sworn by both
the parties. I have also gone through the railway ticket produced
on record by the plaintiff. At present juncture, I do not deem it fit
to conduct inquiry as to the place from where said ticket was
booked. The record shows that the plaintiff was absent on the
dates specified by the defendant No.2 in the reply and therefore,
the order for dismissal of Chamber Summons for want of
prosecution was rightly passed by the Court on dt.04/10/2019. It
is visible from the record that the copy of reply of defendant No.2
is already placed on record. Therefore, the same cannot be a
ground for non appearance of plaintiff. Undoubtedly, the
circumstances shown by the plaintiff are not fully sufficient to
believe his version. However, it also appears that the plaintiff
genuinely wants to argue his Chamber Summons which was
tendered before Hon'ble High Court prior to the transfer of this
suit from High Court on the point of pecuniary jurisdiction.
7 The Chamber Summons is regarding the pecuniary
jurisdiction of the Court and the plaintiff while advancing
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arguments have submitted that if, as per his submission, the
pecuniary jurisdiction is enhanced, the suit will again go back to
the Hon'ble High Court for determination because of the pecuniary
jurisdiction of the Court. In such circumstances, it appears that the
Chamber Summons goes to the root of the jurisdiction of the Court
which needs to be determined before commencing the trial of the
suit. Therefore, it is in the interest of justice to restore the suit by
setting aside the dismissal order passed on dt.04/10/2019. There
appears delay in moving the Notice of Motion as well as advancing
arguments on the Chamber Summons. However, there is no
sufficient and substantial material to show that said delay on the
part of plaintiff is deliberate. Above all, it is necessary to decide
the controversy regarding pecuniary jurisdiction on merit and for
said purpose, I hold that the Notice of Motion deserves to be made
absolute regarding said prayer. So far as the delay is concerned,
the same can be tackled by way of imposing costs while allowing
the Notice of Motion.
8 The plaintiff prayed in prayer clause(c) of the Notice of
Motion to stay further hearing of this proceeding till the disposal
of this Notice of Motion. Record shows that no such stay was
granted, but the suit was not proceeded further till this date. So,
this prayer became redundant.
9 Hence, in view of aforesaid discussion, I hold that the
Notice of Motion deserves to be made absolute only in terms of
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prayer clause(a) and (b).
ORDER
1 Notice of Motion No.4649 of 2019 is made absolute in
terms of prayer clause (a), (b) and (c), subject to deposit of costs
of Rs.5000/ to the Legal Aid accounts of the City Civil Court.
2 Subject to the deposit of the costs as above,
(a) the delay in filing this Notice of Motion stands
condoned.
(b) the order dtd. 04.10.2019 dismissing the Chamber
Summons No. 2079 of 2017 in the present suit stands set
aside the Chamber Summons No.2079 of 2017 be restored
to the file for hearing.
3 Notice of Motion stands disposed off.
Date:12/07/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :12/07/2022.
Typed on :20/07/2020.
Signed on :21/07/2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
22/07/2020 11.20 a.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
12/07/2022.
JUDGMENT/ORDER signed by
P.O.on
21/07/2020.
JUDGMENT/ORDER uploaded on 22/07/2020.
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