Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 4726/2019 in Suit No. 1947/2012 1 ORDER
MHCC010128852019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4726 OF 2019
IN
S.C. SUIT NO. 1947 of 2012
K. TULSIDAS AND BROS. … Plaintiff
V/s.
NARESH GHANSHAMDAS ASWANI … Defendants
Appearances :
Ld. Advocate Ms. Jeni for plaintiff present.
Ld. Advocate Mr. Ashish Gatagat for defendant present.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO. 15)
DATE : 12th April, 2022.
ORDER
This Notice of Motion is filed by plaintiff with request to condone
the delay if for and taking out Notice of Motion. The plaintiff requested
to set aside order dated 16/11/2019 in prayer clause (c). The plaintiff
has requested to allow him to file additional affidavit in lieu of
examination in chief. The defendant has file reply on the same Notice
of Motion. In reply the defendant submitted that the court may passed
necessary order regarding prayer clause (a) and (b), but the defendant
has objection about prayer clause (c) and (d) at this stage.
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NM No. 4726/2019 in Suit No. 1947/2012 2 ORDER
2. The plaintiff has requested 1st relief is about for condonation of
delay if any. The plaintiff has tendered this Notice of Motion for setting
aside order dated 16112019. On 16112019 the court has passed
detail order by showing displeasure of Non coopration from the side of
plaintiff for expedite trial of the suit and therefore the suit was
dismissed. The suit is dismissed on 16112019 and on 09122019 the
plaintiff has tendered present Notice of Motion. From 16112019 to 09
122019 there is no too much delay. However, the defendant has no
strong objection to allow prayer clause (a).
3. In prayer clause (b) the plaintiff has requested to set aside order
dated 19112019 i.e. dismissal of the suit. After dismissal of the suit
immediately the plaintiff has tendered Notice of Motion. There is no
strong objection from the side of defendant to allow prayer clause (b).
4. For prayer clause (c) the plaintiff has asked to allow him to file
additional affidavit of evidence. The said request is strongly opposed
from the side of defendant. Heard argument of both parties. The
advocate of plaintiff placed reliance on the Judgment of Hon’ble
Bombay High Court 1) Mrs. Aban Homa Petit and Anr. V/s. Naryosang
D. Cassad date of Judgment 04/03/2015. In the said citation there was
issue whether additional affidavit under order 18 rule 4 is allowed to be
filed or not and accordingly the Hon’ble High Court has allowed to file
additional affidavit of evidence. But in the case in hand 1st question is
about delay condonation and restoration of the suit. Once the suit is
restored then the question whether additional affidavit can be filed or
not would be considered later on. In the 2nd Judgment i.e. Banganga
Cooperative Housing Society Ltd., V/s. Mrs. Vasanti Gajanan Nerurkar
in Chamber Summons (L) No. 1678 of 2014 in Suit No. 1373/1992. In
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NM No. 4726/2019 in Suit No. 1947/2012 3 ORDER
the said Judgment also the Hon’ble High Court has discussed about
scope of order 18 rule 4 of CPC. From both the citations it can be said
that additional affidavit is permitted to be filed, but that question would
be decided later on after considering facts and circumstances of the case
on record. Therefore, the prayer clause (c) is needs to be considered on
merit later on after restoration of the suit.
5. Already it is discussed that there is no too much delay. However,
immediately after dismissal of the suit, plaintiff has filed Notice of
Motion. The defendant has no strong objection to allowed to restore the
suit. Accordingly, for disposal of the suit on merit opportunity is granted
to plaintiff and I proceed to the following order.
F. R. S. R. following order is passed:
ORDER
1. Notice of motion No. 4726 of 2019 is made absolute in terms of
prayer clause (a) and (b).
2. The question of prayer clause (c) would be considered later on
after considering facts and circumstances on record.
3. Notice of motion No. 4726 of 2019 stands disposed of accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 12/04/2022. City Civil Court, Gr. Bombay
Dictated on : 12/04/2022,
Transcribed on : 12/04/2022,
HHJ signed on : 18/04/2022.
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NM No. 4726/2019 in Suit No. 1947/2012 4 ORDER
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
18/04/2022 04.30 p.m. Mr. Jitesh Suresh Shinde
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
12/04/2022
JUDGEMENT /ORDER signed by P.O. on 12/04/2022
JUDGEMENT /ORDER uploaded on 18/04/2022
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