Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1..
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4782 OF 2019
(CNR NO.MHCC010130502019)
IN
S. C. SUIT NO.3363 OF 2018
Prathamesh Anil Natalkar )..Plaintiff
V/s.
Deepali Anil Natalkar ).. Defendant
Appearances :
Ld. Adv. Vrushali Kabare for plaintiff.
Ld. Adv. Suraj Kudalkar for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 05/01/2023.
ORDER
1 The plaintiffs have filed this notice of motion for setting
aside the order dated 20/10/2018 of dismissal of the suit, with
condonation of delay. The record shows that the plaintiffs have filed the
suit against the defendant for grant of share and separate possession
with injunction. Upon institution of the suit, the department has raised
objection and matter proceeded further on stamp number. Accordingly,
defendant appeared and made statement that he will not create third
party interest in the suit property. In the meantime, the plaintiffs were
-- 1 of 5 --
..2..
directed to remove the objection but, the Ld. Counsel for the plaintiffs
remained absent on 23/07/2018, 05/10/2018 and on 20/10/2018.
Therefore, this Court has dismissed the suit for want of prosecution and
removing the objection, ordering to register the suit for statistical
purpose.
2 It is the contention of plaintiff that on institution of the suit
their Ld. Counsel had told them that as and when the suit was taken for
hearing, he will call them. But, he did not inform the further dates given
by the Court. It is further their contention that they had tried to contact
their Ld. Counsel but, he did not respond therefore, they took a search in
the matter and found that their matter is dismissed for want of
prosecution and soon after receiving the information of dismissal of the
suit, they applied for this notice of motion for restoration contending
that delay caused in applying for restoration may be condoned as it was
not intentional.
3 The defendant appeared but, failed to file the reply. Hence,
the matter proceeded without his reply. The defendant failed to reply
the notice of motion but opted to argue without reply.
4 Heard rival parties at length. It reveals from the record that
the suit is basically filed for partition though it is not specifically worded
and appears to be filed for declaration of share but actually, the suit is
for partition. It is well settled that in a suit for partition, the plaintiffs as
well as the defendants are to be treated as plaintiff. Moreover, it
appears that plaintiff No.2 is minor. The plaintiff No.1 did not apply for
-- 2 of 5 --
..3..
appointment of guardian, as per the provisions of Order 32 Rule 3 of
Code of Civil Procedure. Even if, it is omitted by plaintiff No.1, it was
the duty of Court to take care of interest of minor plaintiff before
proceeding to dismiss the suit. The Court has power to appoint the
guardian of a minor suo moto as per the provisions of Order 32 Rule
4(4) of the Code of Civil Procedure. Thus, dismissal of the suit without
following the provisions of Order 32 Rule 4 of the Code of Civil
Procedure, is injustice upon the minor. The suit is dismissed for want of
removing the objection, however, the minor is not competent to remove
the objection by herself.
5 So far as the reason for absence is concerned, the plaintiff
has submitted that their Counsel has not informed the development of
the case. It is well settled that parties should not suffer for the act and
omission by the Counsel. Moreover, the defendant did not reply to the
notice of motion. Thus, considering the rival submissions and omission
of the defendant to resist the notice of motion by filing reply, I am of the
view that the contention of the plaintiff deserves to be considered as true
facts and the suit deserves to be restored for enabling the plaintiff to
remove the objections.
6 In view of above observations, I proceed to pass the
following order :
O R D E R
1. Notice of Motion No.4782/2019 in S.C. Suit No.3363/2018, is
hereby allowed.
-- 3 of 5 --
..4..
2. Suit stand restored to its original state. Plaintiffs are directed
to remove the objections within one month from the date of
restoration of the suit.
3. Notice of Motion disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 05/01/2023 C.R. No.03, Gr. Mumbai
Dictated on : 05/01/2023
Typed on : 05/01/2023
Signed on :
-- 4 of 5 --
..5..
“Certified to be true and correct copy of the original signed order”.
05/01/2023
at about 06.00 p.m.
(Ms. Sonali S. Sawant)
Stenographer (GradeIII.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 05/01/2023
Order signed by Hon'ble Judge on : 05/01/2023
Order uploaded on : 05/01/2023
at about 06.00 p.m.
-- 5 of 5 --