Final Order 2

Order Details: Notice of Motion
Pdf Text: NM No.4638/2019 in
S.C. Suit No.2893/2016. 1 Order.
MHCC010127732019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4638 OF 2019
IN
S.C. SUIT NO. 2893 OF 2016
Rikhabchand Vachhraj Mehta ...Plaintiff
V/s.
Jivraj Mishrimal Bokadia ... Defendant
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 10-07-2023
Appearance:-
Ld. Advocate Shri. K.S. Tripathi for the plaintiff.
Ld. Advocate Shri. V. N. Gupta for defendant.
ORDER
1. Defendant has taken out this notice of motion for setting aside
the order dtd. 16.10.2018 and restoration of Notice of Motion No. 3161
of 2017. Advocate for the plaintiff strongly opposed the notice of
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NM No.4638/2019 in
S.C. Suit No.2893/2016. 2 Order.
motion.
2. I have heard Ld. Advocates for both the sides.
3. The defendant had filed the Notice of Motion No. 3161 of 2017
for setting aside ex-parte order, condoning delay to file written
statement permitting him to file written statement on record. Said
notice of motion was for hearing. It is came to be dismissed in default
by order dtd. 16.10.2018 for the reasons absence of advocate for
defendant. Therefore, present notice of motion is filed for setting aside
the said order and restoration of said notice of motion.
4. It appears from the record and submissions of the Ld. Advocate
for the defendant that counsel Shri Pratap Shinde appointed by the
defendant expired on 27.07.2018 due to Heart Attack
and therefore, his counsel was absent on 23.08.2018 and on
16.10.2018. Defendant is Senior Citizen and suffering from illness due
to which he could not remain present. On the aforesaid dates said
notice of motion was filed for setting aside the ex-parte order and
permitting him to file written statement. The reason given in the notice
of motion for absence of advocate is found genuine, as
counsel appointed for the defendant was expired in the month of July
and therefore, there is no question of appearing his counsel unless
defendant would have appointed new advocate. As defendant is senior
citizen appearing from the title clause of plaint, the reason of his illness
found probable for non appearance on 23.08.2018 and 16.10.2018.
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NM No.4638/2019 in
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Though the Ld. Advocate for the plaintiff argued that defendant is
having others matters in City Civil Court and he is a court bird, but
nothing placed on record to substantiate this contention. Therefore, I
find genuine reason showing absence of defendant and his counsel on
16.10.2018. Hence, I am of the view that order dtd. 16.10.2018 needs
to be set aside and Notice of Motion No. 3161 of 2017 needs to be
restored for deciding on merit as per law. In the result, I pass following
order:
- ORDER -
1. Notice of Motion No.4638 of 2019 is allowed in terms of
prayer clause (a) and (b).
2. Notice of Motion No. 3161 of 2017 is hereby restored for
hearing.
3. Notice of Motion No.4638 of 2019 is disposed off, accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date :10.07.2023 Gr. Bombay.
1. Dictated on : 10.07.2023
2. Transcribed on : 11.07.2023
3. Checked and Signed on : 12.07.2023
4. Delivered to Certified :
Copy Section on
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NM No.4638/2019 in
S.C. Suit No.2893/2016. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12.07.2023 12.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 10.07.2023
Judgment/Order signed by P.O. on 12.07.2023
Judgment/Order uploaded on 12.07.2023
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