Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4889 OF 2019
(CNR NO.MHCC010133832019)
IN
S.C. SUIT NO. 4926 OF 2007
(HIGH COURT SUIT NO. 1207 OF 2007)
M/S. F.K. CONSTRUCTION ]
A Partnership Firm, duly registered ]
punder the Partnership Act, 1932 ]
carrying on business of Building ]
Construction work and having its ]
Office at A2, V. Parijat Cooperative ]
Housing Society Ltd., Yari Road, ]
Andheri (West), Mumbai 400 061. ].. Plaintiff.
V/s.
1. SMT. MALTIDEVI SHANKARLAL ]
GUPTA, Aged about 65 years, ]
Occupation adult, Indian Inhabitant, ]
residing at Flat No.2, 'A' Wing, ]
V Parijat Cooperative Housing ]
Society Ltd., Yari Road, ]
Andheri (West), Mumbai 400 061. ]
2. M/S. V. PARIJAT COOPERATIVE ]
HOUSING SOCIETY LIMITED, ]
A Cooperative Housing Society duly ]
registered under the provisions of ]
Maharashtra Cooperative Societies ]
Act, having their office at ]
V Parijat Cooperative Housing ]
Society Ltd., Yari Road, ]
Andheri (West), Mumbai 400 061. ]..Defendants
Advocate Mr. Anil Mishra a/w Advocate Mr. U.V.Singh for the
plaintiff.
Advocate Mr.Dinesh C. Shah for the Defendant No.1.
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CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 20th SEPTEMBER 2021
ORDER
The Notice of Motion is filed for setting aside the order of
dismissal of the suit dated 04/11/2019.
2. It is the case of the plaintiff that Suit No. 4926 of 2007 was
instituted for the relief of possession of the suit premises. Plaintiff filed
affidavit of examination in chief in that suit on 08/07/2019 and the
documents were marked. The matter was posted on 07/08/2019 for
filing certified copies of the documents which were photocopies.
Plaintiff filed an application before the Hon'ble High Court for getting
certified copies of the documents which were filed in S.C. Suit No. 679
of 2002. Plaintiff got the certified copy is on 26/10/2019.
3. It is the case of the plaintiff that the oral evidence of
partner of the plaintiff Mr. Subhash Faujdar Yadav was filed. However,
he suffered heart problem and was required to undergo angioplasty. As
he was feeling uneasy, he visited the Apollo Hospital and was examined
on 24/10/2019. Hence, he could not attend the Court on 04/11/2019.
Hence, an application for adjournment was filed before the Court on the
04/11/2019 which came to be rejected by the Court. Consequently, the
suit was dismissed.
4. Plaintiff has further stated that the issues were framed in
the year 2013. Earlier the suit was dismissed on the grounds that
learned advocate for plaintiff Mr. U. V. Singh suffered heart attack on
19/04/2014 and was admitted in Bombay Hospital. He was required to
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undergo angioplasty. As the suit was dismissed, plaintiff took out a
notice of motion for restoration of the suit bearing No. 2467 of 2014.
5. It is the case of the plaintiff that the absence of plaintiff was
not intentional or deliberate. Plaintiff is willing to proceed with the
suit. Plaintiff will suffer great harm, loss, injury and prejudice, if the
suit is not restored. The same cannot be compensated in the terms of
money.
6. The Notice of Motion is contested by the defendant No. 1.
It is stated that the affidavit in support of the motion is affirmed on
28/11/2019, whereas the Notice of Motion is filed on 20/12/2019. This
shows that the plaintiff is negligent in handling the matter. As the
Notice of Motion is registered on 20/12/2019, it is not within
limitation. The order of dismissal was passed on 04/11/2019. There is
delay of about 16 days in filing of the motion. Plaintiff has not prayed
for condonation of the delay. Hence, the motion is liable to be
dismissed.
7. Defendant No. 1 has further stated that the suit came to be
dismissed after hearing both the parties. Therefore, the notice of
motion for restoration is not maintainable. The partner of the plaintiff
who filed affidavit of examination in chief could have remained present
before the Court on 04/11/2019. Plaintiff has not made out any case
for restoration of the suit. Hence, the defendant No. 1 has prayed for
dismissal of the notice of motion.
8. I have heard both learned Advocates at length. I have gone
through the record of this Notice of Motion and the S.C. Suit No.4926
of 2007.
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9. Considering the pleading of the parties and reply following
points arise for my determination and my findings to them are as stated
below for the following reasons.
Points
Sr.
No
POINTS FINDINGS
1 Whether the plaintiff is entitled for the relief
of restoration of Suit No. 4926 of 2007 as
prayed for?
In the
Affirmative
2 What Order ? As per final order
R E A S O N S
AS TO POINT NO.1:
10. It is the case of the plaintiff that its partner Mr. Suresh
would not attend the Court on 04/11/2019, as he was not well. Plaintiff
has filed a prescription issued by Doctor Rahul Gupta of Apollo
Hospitals dated 24/10/2019. He found that Mr. Subash was having
complaint of mild heaviness in chest during the day. The latter part of
the certificate shows that Mr. Subash was advised to undergo
angiography. This shows that the witness for plaintiff was ill and
visited the hospital on 24/10/2019 and was advised to go for
angiography for the heart problem.
11. While dismissing the suit, my learned predecessor observed
that the suit was more than 12 years old. Sufficient opportunity was
already granted to the plaintiff. Therefore, the suit came to be
dismissed.
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12. The order does not disclose that the inability of plaintiff to
attend the Court for medical reason was not placed before the court on
04/11/2019. In the circumstance, the medical certificate shows that
the reason given by the plaintiff is not afterthought. It is also important
to note that plaintiff has not filed any document to show that the
witness Subash got the angiography done or he was admitted in the
hospital or he was prevented by the medical advice from attending the
Court.
13. The order of dismissal discloses that though the suit was
instituted in the year 2007, the issues were framed on 18/12/2013.
The order does not disclose that the affidavit of examination in chief
was filed by the witness per plaintiff. On perusal of the Roznama of the
original suit, it appears that the suit was dismissed earlier on
22/04/2014 as plaintiff and his advocate were absent. On the next day
that is 30/06/2014 plaintiff filed Notice of Motion for restoration of the
suit it came for hearing on 09/10/2015. It was adjourned for order on
11/08/2017 and was decided on 13/09/2017. The suit was again
posted for recording of evidence on 23/10/2017. The Roznama shows
that on all the dates except 21/11/2017 either plaintiff or his learned
advocate attended the Court. The affidavit of examination in chief
came to be filed on 08/09/2019 and the documents were marked on
that day. The suit was adjourned on 07/08/2019 when the presiding
officer was on training. On 04/10/2019, learned advocate for plaintiff
and defendant No. 1 were present. This conduct of the plaintiff shows
that he was interested in the matter and was willing to conduct the
hearing of the suit. It also appears that he was prevented by the
medical reason. However, he failed to produce evidence to show that
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on 04/11/2019, he could not attend the Court due to medical advice.
However, his previous conduct makes him entitled for restoration of the
suit subject to payment of cost. Accordingly, I answer point No. 1 in the
affirmative and in answer to point No. 2, proceed to pass following
order.
O R D E R
1. Notice of Motion No. 4889 of 2019 is allowed
subject to the payment of cost of Rs.5,000/ each
defendant Nos. 1 and 2 by the plaintiff.
2. The Suit No.4926/2007 be restored to its original
stage on payment of cost by the plaintiff to the
defendants.
3. The Plaintiff to bear his own costs of this notice
of motion.
4. Notice of Motion No.4889 of 2019 stands
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 20.09.2021 Gr.Mumbai.
Dictated on : 20.09.2021
Typed on : 20.09.2021
Signed on : 20.09.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
24.09.2021 AT 5.35 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
20/09/2021
Judgment/Order signed by P.O. on 20/09/2021
Judgment/Order uploaded on 24/09/2021
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