Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of motion No.4823/2019
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MHCC010131872019
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
NOTICE OF MOTION NO. 4823 OF 2019
IN
SUMMARY SUIT NO. 1297 OF 2019
Subhash Sopan Sherekar ...Plaintiff
Versus
Mohammad Rafiq Mohammad Khan ...Defendant
Mr. Ramesh Jain, ld. Advocate for plaintiff.
Mr. Deepak Shukla, ld. Advocate for defendant.
CORAM : H.H. JUDGE SHRI SANJIV PRABHAKAR PINGLE,
COURT ROOM NO.84,
O R D E R
(Delivered on 29/01/2026 & 30/01/2026)
1) This notice of motion is taken out for declaration with ex-parte
order, judgment and decree dated 03/05/2019 is ‘non-est’.
Consequently, prayed to set aside the same by condoning the delay, if
any in filing written statement and permit the defendant to file his
written statement.
2) Lastly, contended to stay the effect, operation and
implementation of the ex-parte order, judgment and decree dated
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Notice of motion No.4823/2019
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03/05/2019 by filing supporting affidavit of Mohd. Rafiq Mohd.
Khan contending that defendant is not liable to pay the amount as
per decree being the decree is non-est and obtained by keeping him
in dark as he was never served with the writ of summons or any
notice about the pendency of the suit or hearing of the suit.
3) Hence, prayed to set aside and quash the decree and judgment
dated 03/05/2019.
4) It is also contended that without prejudice to his aforesaid
stand, it is contended that it is settled law that in view of the
provisions of Income Tax Act, cash amount more than Rs.20,000/-
cannot be transacted as per section 269 S. S. and T of the Income Tax
Act.
5) The cash amount more than Rs.20,000/- is strictly prohibited by
the Statue. However, the said rule of law has been flouted.
6) Lastly, it is contended that the alleged writ of summons have
been shown as served upon him at ‘day time’. For the said entire
month, he was having ‘night duty’. Hence, prayed to allow the notice
of motion.
7) By handwritten reply filed today by the plaintiff, it is contended
that the present notice of motion filed under Order IX Rule 13 of
Code of Civil Procedure is not maintainable for summary suit being
there is specific provision under Order XXXVII Rule 14 of Code of
Civil Procedure. Hence, present notice of motion is liable to be
dismissed and prayed to dismiss with costs.
8) Following points arises for my determination to which I have
noted my findings with reasons thereon to each one as under :-
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Notice of motion No.4823/2019
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SR.NO. POINTS FINDINGS
1 Whether the present notice of motion filed
under Order IX Rule 3 of Code of Civil
Procedure is maintainable ?
Partly Yes.
2 Whether the ex-parte judgment and decree
dated 03/05/2019 is non-est ? Yes.
3 What Order? Notice of
motion is
Allowed.
R E A S O N S
9) Heard ld. Advocate Mr. Deepak Shukla for defendant and ld.
Advocate Ramesh Jain for plaintiff.
AS TO POINT NOS.1 AND 2:
10) Gone through the provisions of Order XXXVII Rule 4 of Code of
Civil Procedure which according to the ld. Advocate Mr. Ramesh Jain,
Order IX Rule 13 of Code of Civil Procedure would not come into
play when this being the summary suit and there is specific provision
enacted by the legislature for the said purpose.
11) After having gone through the relevant Rule 4 of Order XXXVII
of Code of Civil Procedure, which deals with the powers of the Court
to set aside decree and it is reproduced for the sake of brevity as
under-
“4. Power to set aside decree.—After decree the Court
may, under special circumstances set aside the decree,
and if necessary stay or set aside execution, and may
give leave to the defendant to appear to the summons
and to defend the suit, if it seems reasonable to the
Court so to do, and on such terms as the Court thinks
fit.”
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12) After bare perusal of the said rule holds water in the submission
of the ld. Advocate Ramesh Jain. So far as, if the party succeeded in
showing ‘special circumstances’ for setting aside the decree, in that
contingency, the Court has power, if found necessary to stay or set
aside the Execution Application by granting leave to defend to appear
to summons to defend the suit.
13) If it is found and seems to be reasonable to the Court to do so,
however, on such terms and conditions as Court thinks fit.
14) So it appears that as per Rule 4, the Court can entertain present
application. However, it does not mean that notice of motion, if at all,
may be either due to advertence or inadvertence, if taken out and not
Rule 4 of Order XXXVII of Code of Civil Procedure.
15) Moreover, time and again it has been ruled by the Hon’ble Apex
Court that even if party may commit the mistake in mentioning the
rule of law or section or order, the Court is required to be through the
purport of the proceedings and the reliefs sought.
16) If it is so, I am in total agreement with the submission of the ld.
Advocate Mr. Ramesh Jain that the present notice of motion ought to
have been taken out under Rule 4 of Order XXXVII of Code of Civil
Procedure. So therefore, treating the notice of motion taken out
under said relevant rule, I am proceeding to find out whether as per
the supporting affidavit, defendant has succeeded in showing that
there is improper service of writ of summons or otherwise.
17) Ld. Advocate Mr. Deepak Shukla shown some photocopies
showing the name of original defendant/judgment debtor Mohd.
Rafique Mehmood Khan bearing Employee No.3561317 AEBAS ID
No.17028738 showing that he punched on 12/12/2018 23:31:54
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(CLOSE) and 15:16:55 (OPEN). However, this is mere photocopy and
ld. Advocate Deepak Shukla very well knows that photocopies are not
admissible i.e. inadmissible for keeping relevance by the Court.
Therefore, he again from his brief, taken out some documents which
are duly signed by the Administrator of MCGM and no doubt it
appears to be pertaining to the document of Muster/Presenty as per
the application dated 19/12/2019 of the Judgment
Debtor/Respondent/original defendant and in response to it, the
necessary information has been supplied vide O.W.
No.सआकेप/53523/आस्था -२ dated 01/01/2020 and when it is shown to
the ld. Advocate Ramesh Jain, he also pointed out that these
documents are also not original and photocopy and never supplied to
him.
18) I found force so far as the authenticity of these documents are
not being certified true copies and photocopies of certified true copies
which is inadmissible. Hence, the ground that service effected on the
day on the original defendant/present respondent/judgment debtor
at day time when he was having night duty would not sustain as
there is no authenticated copy of the information supplied by the
MCGM before the Court.
(At this juncture, the ld. Advocate requested to keep back the matter
for sometime. Hence, kept back at 2.45 p.m. If he fails, the Court
would complete further order as only on his insistence when it was
pointed out to the Court, present notice of motion is pending since
last 7 years and no reply was filed by the decreeholder/original
plaintiff and now when the plaintiff shown his willingness to file
reply, I have taken the notice of motion in hand to dictate and
dispose of being more than 5 years today only. )
Due to paucity of time, matter adjourned on 30/01/2026.
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Notice of motion No.4823/2019
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(Today, further order continued on 30/01/2026.)
19) Today, ld. Advocate Deepak Shukla brought to the notice of the
Court from the Court record, the list of documents dated 14/06/2024
which is not marked as Exhibit. Hence, it is exhibited today as
Exhibit-14.
20) On perusal of the certified copy dated 30/12/2019 bearing
Outward No.सआकेप/53523/आस्था -२ dated 01/01/2020, Page No.5 is
the original copy of the AEBAS Department wise Report of Employee
Mohd Rafique Mehmood Khan and the said letter is marked as
Exhibit-15 and Exhibit-16 today.
21) It goes to show that employee No.3561317 with AEBAS ID
17028738 on 12/12/2018 resumed duty on 23:31 and punched at
location MCGM Ward and punched on 15:16 showing Open at the
MCGM which goes to show that on the date of service of writ of
summons, he was not having a day duty and had night duty.
22) Therefore, I found substance in the submission of ld. Advocate
Shukla that the service shown by the concerned bailiff on the day in
the MCGM Office he was on duty appears to be not correct.
23) Therefore, notice of motion No.4823 of 2019 deserves to be
allowed as judgment and decree dated 03/05/2019 is non-est and
deserves to be set aside accordingly. Hence, I noted my finding
accordingly to the point No.1.
24) At the time of delivery of the order, the ld. Advocate Shukla
pointed out that written statement is not tendered. However, ready to
tender. Hence, permission to file written statement is granted. Hence,
matter kept for filing ‘Written Statement’ and trial of summary Suit
No.1297 of 2019 in accordance with the law.
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Notice of motion No.4823/2019
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25) Hence, I noted my findings to the Point Nos.1 and 2 accordingly
and I proceed to pass following order :
ORDER
1. Notice of motion No.4823 of 2019 is allowed.
2. The order, judgment and decree dated 03/05/2019 is non-est,
quashed and set aside.
3. The summary suit No.1297 of 2019 stands restored to its
original stage.
4. Matter fixed for ‘Written Statement’.
5. Notice of motion No.4823 of 2019 is disposed of accordingly.
(Dictated, delivered and pronounced in open Court)
( SANJIV PRABHAKAR PINGLE )
JUDGE, CR NO.84,
Date : 30/01/2026 CITY CIVIL COURT, AT MAZGAON,
MUMBAI.
Dictated on : 29/01/2026 & 30/01/2026.
Transcribed on : 29/01/2026 & 31/01/2026.
Signed on : 02/02/2026.
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Notice of motion No.4823/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Sonali S. Naik
Name of Stenographer03/02/2026 5.30 p.m.
Name of the Judge (With C.R. No.) HHJ SHRI. SANJIV PRABHAKAR
PINGLE
(COURT ROOM NO.84)
Date of Pronouncement of
JUDGMENT / ORDER
30/01/2026
JUDGMENT / ORDER signed by P.O.
on
02/02/2026
JUDGMENT / ORDER uploaded on 03/02/2026
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