Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4723/19(Suit 136/16)
MHCC010128872019
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 4723/2019
IN
S.C. SUIT NO.136/2016
M/s. Suarth Habitate ..Plaintiff
V/s.
1. Mr. Kiran Shrikant Salunke
2. Mr.Sanjay Shrikant Salunke
3. Kumari Bhavana Shrikant Salunke
4. Mr. Prashant Shrikant Salunke
5. Mrs. Priya Samir More.
6. Nandini Dharmadas Bhansali
7. Suryakant Ishwarlal Bhansali
8. Saroj Kumar Ishwarlal Bhansali
9. Arvind Ishwarlal Bhansali ..Defendants
Appearance:-
Adv. Mr. Ganesh Murty for the plaintiff.
None for the defendants.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 12.3.2020.
ORAL ORDER
1. This Motion is taken out by plaintiff for setting aside order
dated 22.11.2019 dismissing the suit against defendants no.2,4 and 6 to
11 and for restoration of the suit against them. The notice of motion is
supported by an affidavit of Mr.Bharat Subhashchandra Upadhyay,
partner of the plaintiff firm and copy of order dated 22.11.2019 (Ex.A).
2. I have heard Ld Counsel for the plaintiff. None present for
the defendants. Say / reply is not filed by the defendants.
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3. It is submitted on behalf of the plaintiff that, by order dated
22.11.2019, this court had dismissed the suit against defendants no.2,4
and 6 to 11 as not pressed by the plaintiff and for restoration of the suit
against them. It is submitted that, the plaintiff had filed the present suit
against the defendants for seeking relief of declaration and perpetual
injunction. The defendants were served with writ of summons and
defendants no.1,3 and 5 appeared. However, defendants no.2,4 and 6 to
11 did not appear and the suit proceeded exparte against them. The
defendants no.1,3 and 5 submitted their WS and after that, there were
settlement talks between the plaintiff and defendants no.1,3 and 5 and
the settlement was arrived at between the plaintiff an defendants no.1,3
and 5 as per consent terms, and the suit was disposed as settled
between the parties. However, the suit had proceeded exparte against
defendant no.2,4 and 6 to 11 as per order in Roznama vide Ex.A filed
with the Motion.
4. Ld. Counsel for the plaintiff submitted that, on 22.11.2019,
when the matter was taken up on board, on an application for
adjudication of original decree, the said application was allowed and
Counsel for the plaintiff was asked to make statement whether the
plaintiff wanted to proceed against remaining defendants. Ld. Counsel
for the plaintiff sought instruction from the representative of the
plaintiff Mr. Bharat Upadhyay, who was present before the court. He
was not conversant with the court proceedings and was not aware
about consequences of the statement regarding withdrawal of the suit
against remaining defendants no.2,4 and 6 to 11. He was under
impression that the decree will be passed against all the defendants.
Therefore, on instruction of the representative of the plaintiff, a pursis
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was filed for withdrawal of the suit against the defendants no.2,4 and 6
to 11 and suit was dismissed against them as not pressed/ withdrawn as
suit had proceeded exparte against the said defendants. The consent as
consent decree could not be passed against them and therefore, it is
necessary to restore the suit by setting aside the order of dismissal of
the suit against defendants no.2,4 and 6 to 11 dated 22.11.2019, in the
interest of justice.
5. After considering the averments made in the supporting
affidavit and statement made by Ld. Counsel for the plaintiff, I am
satisfied that the plaintiff had made a statement before the court and
filed pursis not to press the suit against defendants no.2,4 and 6 to 11.
The office appears to have taken objection that the suit has been
decreed and disposed of as against defendants no.1,2 and 5 only as per
consent terms dated 15.12.2018. Hence, to remove technical objection
of the office, it is necessary to restore the suit against defendants no.2,4
and 6 to 11 by setting aside the order dated 22.11.2019, so as to enable
the plaintiff to settle the claim against all the defendants, in the interest
of justice. Hence, I proceed to pass following order :-
ORDER
1. Notice of Motion No.4723/2019 is hereby allowed and
made absolute.
2. Order dated 22.11.2019 dismissing the suit as against
defendants no.2,4 and 6 to 11 is hereby set aside and
the suit is restored against them.
3. Costs of the Motion shall be costs in the cause.
4. Office is directed to do the needful and comply.
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Notice of Motion is disposed of accordingly.
(V.V. Vidwans)
Date: 12.3.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 12.3.2020
Transcribed on : 12.3.2020
Signed by HHJ on : 13.3.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 14.3.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 12.3.2020
Judgment/ order signed by P.O on 13.3.2020
Judgment/ order uploaded on 14.3.2020
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