Final Order 1

Order Details: Notice of Motion
Pdf Text: Order ..1.. NM NO.4765 of 2019
MHCC010130242019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4765 OF 2019
IN
S.C.SUIT NO. 7451 OF 1997
(HIGH COURT SUIT NO. 3295 OF 1997)
Juhu Kishank C.H.S. Ltd., and others. .. Plaintiffs.
Versus
Rukmani C. Kewalramani and others. .. Defendants.
Advocates
Priyanka Chhabriya for plaintiffs.
K.T. Kukreja for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(Court No.: 2)
DATED : 10th November, 2021.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of plaintiffs for restoration of the suit by condoning delay of
about 846 days in filing notice of motion and for setting aside order
dated 07.07.2017 by which the suit was dismissed in default for want of
prosecution.
2. All defendants are duly served. Except advocate for defendant
no.1(a) to 1(c) and defendant no.2, other defendants remained absent.
Advocate for defendant 1 and 2 strongly opposed the notice of motion
by filing reply. Perused the notice of motion alongwith affidavit, reply of
defendant no.1 and 2, and proceedings of the suit.
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3. Contention of advocate for plaintiffs is that originally plaintiffs
filed the suit before the Hon'ble High Court for declaration that
agreement dated 01.12.1989 is void and not binding on plaintiffs and
the same does not create any right in favour of defendant no.1 and 2 in
respect of suit flat i.e., Flat no.1, 3rd Floor, situated in plaintiff no.1
Society and for possession and compensation for wrongful occupation
of the suit flat. Subsequently suit is transferred from the Hon'ble High
Court to this Court on the ground of pecuniary jurisdiction.
4. Plaintiff no.3 was regularly appearing before the Court. On
23.09.2015, plaintiff filed his affidavit in lieu of examination-in-chief
and documents. Thereafter for period of one year, defendant and their
advocates remained absent from 23.09.2015 till 08.07.2016 hence
matter could not be proceeded further. Since 2013, health of plaintiff
no.3 started getting deteriorated and he started suffering from several
health problems due to advancing age (68 years in the year 2013). He
was unable to travel. He even retired from his job as an LIC agent in
December, 2014.
5. In September, 2016 plaintiff no.3 had discharged the services of
his advocate on record. He made an application in that behalf and
sought time from this Hon'ble Court to appoint another advocate.
Accordingly time was granted to him on 30.09.2016 by Hon'ble Court
and case was adjourned to 18.11.2016.
6. During that time with passage of days his illnesses started
aggravating and worsening. He could not take exertion and stress.
Therefore he could not appoint another advocate to represent him in
present suit and he had also discharged his previous advocate. However,
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he personally appeared before Hon'ble Court and sought time to take
steps on 13.04.2017.
7. His wife Mrs. Salila Patel is the only family member who resides
with him in Mumbai. His wife is also aged 72 years and suffers from
several health problems. Therefore no person on his behalf could take
steps in the matter. His only child (daughter) is married and settled in
Godhra in State of Gujarat. He has no close family member or relative
in Mumbai and he had no helping hand to look after his day to day
activities and medical care. He had no emotional and financial support.
He had been managing on his own to survive. Thereafter due to health
condition he went to his daughter's house in Gujarat for medical
treatment and support and stayed there from June, 2017 to November,
2017 and from February, 2018 to July, 2018, he was taking medical
treatment there. Health condition of plaintiff no.3 started deteriorating
even more and he was advised by doctor not to travel and not to
undergo stressful or exerting activities. Therefore he could not
personally appear before the Hon'ble Court on 07.07.2017 and neither
could appoint new advocate. Hence on 07.07.2017, the suit is
dismissed for want of prosecution as plaintiffs were unrepresented
when the matter was called out.
8. Now in 2019 he started getting stable and recovering and there is
improvement in his health condition since last few months. Some time
during first week of November 2019 he being desirous of knowing the
present status of the suit, engaged a lawyer's services to ascertain the
current status of the matter. His advocate checked the case status of the
suit and became aware of the fact that the present suit had been
dismissed for non-prosecution by way of the impugned order dated
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07.07.2017 passed by this Hon'ble Court. Immediately on 15.11.2019,
he applied for a certified copy of the minutes of the order dated
07.07.2017 and received the certified copy on 19.11.2019.
9. Due to sufficient cause mentioned above, he personally could not
appear in the matter and was unrepresented by advocate when the
matter was called out on 07.07.2017. Prior to the dismissal the
plaintiffs and/or our advocate had been efficiently attending the matter
regularly. He has been litigating the present suit since last 20 years with
the hope for justice whereas he was personally or through advocate
duly represented on all dates prior thereto.
10. He was absolutely unaware of the dismissal of the suit, thus there
is a delay in filing the present notice of motion for restoration of the
present suit. Delay in filing the notice of motion is due to sufficient
cause and circumstances beyond his control explained hereinabove. The
plaintiff undertakes to proceed with the suit diligently and not cause
delay if the same is restored to the file of this Hon'ble Court. Therefore,
he prayed for making absolute the notice of motion.
11. Contention of advocate for defendant no.1 and 2 is that suit was
dismissed for non prosecution on 07.07.2017 after giving several
opportunities to the plaintiff by subjecting the plaintiff no.3 to costs as
well as by mentioning as last chance from 15.06.2016 onwards but
plaintiffs did not proceed with the suit. He pointed out several dates in
roznama to show that plaintiffs were not interested in prosecution the
suit. Suit is of the year 1997. Defendant no.1 and 2 filed their written
statement. Legal heirs of defendant no.1 is also brought on record.
Hence the suit is not undefended suit. Though advocate for defendant
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no.1 and 2 were appearing before the Court, affidavit of examination-
in-chief and documents were not served on defendants. Hence it cannot
be said that matter could not be proceeded due to absence of
defendants.
12. Notice of motion is taken out after period of more than two years.
Plaintiff failed to give any explanation for the intervening period after
plaintiffs discharged earlier advocate from the date of first adjournment
till next date and thereafter continuously which went on for 10 months
after discharge of earlier advocate. Health problem and Medical
Certificate of plaintiff no.3 are of the year 2013. Medical Certificate
dated 12.10.2019 issued by Doctor Ramkumar Murthy is procured only
further the purpose of present notice of motion as Clinic of Doctor
Murthy is at Goregaon and plaintiff is residing at Vile Parle. Hence he
prayed for dismissal of notice of motion by relying on the Judgement of
Supreme Court in
Basawaraj and Anr v. The Spl. Land Acquisition
Officer (2013 AIR SCW 6510) and Judgment of
the Hon'ble Bombay
High Court (Nagpur Bench) in Sau. Madhavi S. Kulkarni v. Vishram S.
Bhakre (AIR 2007 BOMBAY 61).
13. Advocate for plaintiffs also relied on the Judgment of
the Hon'ble
Delhi High Court in Ss Builders vs. Smt. Sita Rani Ahuja [106 (2003)
DLT 538] and the Judgment of
the Hon'ble Madras High Court in
Ganasundari (deceased) and Anr., v. Ekambaram and Ors., in C.R.P.
NPD No.1710 of 2004 delivered on 17.09.2009.
14. After hearing advocate of the parties and perusing the record, it
appears that plaintiff no.3 was appearing before the Court. Advocate for
plaintiffs sought discharge from the Court. Case was fixed for evidence
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of the plaintiff. On several occasions, plaintiffs sought adjournment to
engage new advocate but failed to engage advocate and ultimately due
to absence of plaintiff and their advocate, suit was dismissed in default
on 07.07.2017.
15. Suit is for declaration and possession of the flat in possession of
defendant no.1 and 2. Plaintiff no.3 is a member of plaintiff no.1 society
as well as allottee of suit flat. Defendant no.1 and 2 are the contesting
defendants. Present notice of motion is pending since 2019. Advocate
for plaintiffs is regularly attending the Court and proceeding further
with the present notice of motion diligently. Plaintiff no.3 filed his
affidavit in lieu of examination-in-chief and documents on 23.09.2015.
Hence it cannot be said that plaintiff no.3 was not prosecuting the suit
diligently. Admittedly plaintiff no.3 is age old person and suffering from
various diseases. Same is also evident from the Medical Certificates of
plaintiff no.3 filed on the record. Admittedly plaintiff given reasonable
explanation and shown sufficient cause for his non appearance before
the Court and his inability to engage new advocate when the suit was
dismissed in default.
16. This Court gone through the Judgment relied on by advocate for
defendant in
Basawaraj and Anr v. The Spl. Land Acquisition Officer
(2013 AIR SCW 6510) in which the Hon'ble Apex Court held that no
Court to be justified in condoning such an inordinate delay by imposing
any condition whatsoever. In the said case appellant had filed appeal
after 5 ½ years against the award of compensation passed in land
acquisition proceedings and the appellant had filed condonation
application on the ground that one of the appellant had taken in. In the
present case, plaintiff no.3 filed his examination-in-chief and he was
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regularly attending the Court prior to dismissal of the suit. In the
present case, delay in filing notice of motion for condonation of delay is
more than two years. Plaintiff shown sufficient cause for his non
appearance before the Court.
17. This Court also gone through the Judgment of Hon'ble Bombay
High Court
in Sau. Madhavi S. Kulkarni v. Vishram S. Bhakre (AIR 2007
BOMBAY 61). Said judgment is arising out of Civil Revision Application
and the Hon'ble High Court observed that the scope of revision is very
limited and the Court has only to look out into the illegality or material
irregularity. In the said Judgment, the Hon'ble Bombay High Court
disbelieved to accept the reasons for condonation of delay in restoration
of the suit. In the present case, plaintiff no.3 annexed Medical
Certificate dated 12.10.2019 issued by Dr. Ramkumar Murthy (MBBS)
stating that plaintiff no.3 is suffering from illness since 2013. In spite of
that plaintiff no.3 filed his examination in chief in the year 2015. There
is no reason to disbelieve the medical certificate of plaintiff no.3. Under
the circumstances, both Judgment relied on advocate for defendant is
distinguishable on facts. Hence not much helpful to support contention
of advocate for defendant.
18. It is a rule of natural justice that matter should be decided on
merits. If matter will be decided on merits, no prejudice would be
caused to defendants. Plaintiffs also undertaken to proceed with the suit
diligently. For causing delay in proceeding with the suit, defendants can
be compensated in terms of money. Considering the nature of suit and
reasons mentioned in the notice of motion, notice of motion is liable to
be allowed subject to heavy costs. In the result, following order.
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Order ..8.. NM NO.4765 of 2019
ORDER
1. Notice of Motion no. 4765 of 2019 is allowed and made absolute
in terms of prayer clause (a) and (b) subject to costs of Rs.30,000/- out
of which Rs.10,000/- is to be deposited with District Legal Services
Authority and Rs.20,000/- to be paid to defendant no.1(a) to 1(c) and
defendant no.2 within period of one month from the date of this order.
2. After payment of costs as above, suit shall be restored to its
original position.
3. Notice of Motion no.4765 of 2019 is disposed of.
(Sunil T. Soor)
Judge
Date : 10.11.2021 City Civil Court, Gr. Mumbai.
Typed on : 10.11.2021
HHJ signed on : 10.11.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10.11.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
10.11.2021
JUDGMENT/ORDER signed by P.O.
on
10.11.2021
JUDGMENT/ORDER uploaded on 10.11.2021
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