Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.4971/2019 ..1.. InS.C.Suit No.2180/2014
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 4971 OF 2019
IN
S.C. SUIT NO. 2180 OF 2014
CNR NO : MHCC010135722019
1. Mrs. Rashmi Sandeep Patil & Anr., ...Plaintiff
Versus
1. Mr. Smt Geeta Bharadwaj & Ors., ...Defendants
Appearance :
Mr. A. V. Pande, Advocate for the Plaintiff.
Mr. V. B. Kulkarni, Advocate for defendants No.1 & 2.
Mr. Paras Gosar i/b Jayesh R. Vyas, Advocate for defendant No.3.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 26TH MARCH, 2021.
ORAL ORDER
By this notice of motion, the plaintiff has sought restoration
of the suit dismissed for want of appearance of the plaintiffs on
18.11.2019.
2. In brief, the plaintiffs’ case is that, the suit was scheduled
on 18.11.2019. On that day, their advocate Mr. R. M. Pande was
held up in the Hon’ble High Court. The plaintiff No.1 was not
aware of the said date and so could not remain present before the
Court. In absence of the plaintiffs and their advocate, the Court
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has dismissed the suit for want of prosecution. The plaintiff
inquired with the advocate about the matter on next day, but
could not get exact information. Advocate for plaintiff therefore
applied for certified copy on 29.11.2019 which was delivered on
13.12.2019. The plaintiff came to know about dismissal of the
suit. The plaintiffs have good case on merits and the suit is
pending for trial. If the order of dismissal is not set aside the
plaintiffs would have suffered irreparable loss.
3. Notice of Motion is opposed on the ground that, there are
two plaintiffs in the case. The notice of motion and affidavit in
its support nowhere states why plaintiff No. 2 did not remain
present in the Court. The plaintiff No. 1 has tried to cover her
negligence. The plaintiffs had neglected to prosecute the suit and
so it was dismissed. The details of orders passed by the Court are
easily available on the Website of the Court. Plaintiff No. 1 being
a tech savvy Bank Employee could have easily come to know
about the orders as well as the date of the case. However, it was
not done. Therefore, the reasons for absence of plaintiffs and
their advocate are not acceptable. Plaintiffs and their advocate
should have taken due steps to attend the Court on the date when
the suit was listed. The engagement of plaintiffs’ advocate before
the Hon’ble High Court cannot be a ground for restoration of the
suit specially when the Court has noted the various dates on
which the plaintiffs and their advocate remained absent in said
suit. The affidavit of plaintiffs’ advocate is not filed to support
the grounds raised in the notice of motion. Certified copy was
also not applied immediately as alleged. The suit itself is
meritless. The plaintiffs are unnecessarily dragging the Senior
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Citizens i. e. the defendants into unnecessary litigation which is
for harassing them.
4. Perused. Heard.
5. Perusal of the order passed by my Predecessor reveals that,
the suit is dismissed by invoking powers conferred on the Court
under Rule 8 Order 9 of CPC.
6. The application for restoration has to be considered under
Order 9 Rule 9 of CPC. Rule 9 provides that, if the plaintiff
applies for setting aside the dismissal and satisfies the Court that
there was sufficient cause for his non appearance when the suit
was called on for hearing, the Court may set aside the dismissal
upon such terms as to costs with otherwise and may appoint a
day for proceeding with the suit. Considering the specific
provisions of Rule 9 of Order 9 of CPC, while considering present
notice of motion, this Court will have to consider the ground for
absence of plaintiffs and their advocate when the suit was called
on for hearing. Thus, the reasons for absence or presence of
plaintiffs and their advocate on earlier dates is of no
consequence.
7. The plaintiffs have come with the case that, on the date of
hearing the plaintiff No. 1 was not aware of the date and so could
not appear. The advocate for plaintiffs was held up in the
Hon’ble High Court and so he could not appear.
8. By and large a picture is still the same that the litigants,
howsoever educated and alert they may be, are dependent on the
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advice given by their advocate. Most of the litigants still leave it
to their advocate to appear before the Court and conduct the
matters. In such circumstances, when the advocate for plaintiffs
could not appear before this Court, when the suit was called on
for hearing as he was engaged in a matter before the Hon’ble
High Court, it appears to me that, the plaintiffs have made out a
ground to satisfy this Court that, there was sufficient cause for
the nonappearance of their advocate.
9. The roznama dated 07.10.2019 indicates that, the suit was
posted for admission or denial of documents on 18.11.2019.
Thus, the plaintiffs’ presence on that day, presuming that
plaintiffs were aware all the stages mentioned in roznama, would
not matter much. No doubt presence of plaintiffs’ advocate was
warranted, but the reasons pressed into service for his absence is
acceptable. As already noted, absence of plaintiffs on earlier date
cannot be considered to decide present notice of motion. No
doubt it is true that, the affidavit in support of notice of motion
does not state the reasons for absence of plaintiff No.2.
Proceedings indicate that, the affidavit of evidence of plaintiff
No.1 was filed on record at Exh.5. Thus, apparently plaintiff
No.1 appears to in charge of the prosecution of the suit. In such
circumstances, the reasons for absence of plaintiff No.1 and
advocate for plaintiffs as stated, if found sufficient would be
enough to restore the suit.
10. As already discussed, such grounds are found
sufficient to explain the absence of plaintiff No.1 and the
advocate for plaintiffs. Therefore, I hold that, the plaintiffs have
made out sufficient ground to set aside the dismissal. However,
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subject to the appropriate costs payable to the defendants No. 1
and 2. Hence, following order:
ORDER
1. Notice of Motion No. 4971/2019 is made
absolute in terms of prayer Clause (a) subject
to costs of Rs.10,000/ payable to defendants
No. 1 and 2.
2. Plaintiffs shall pay the costs to the defendants
or deposit it in the Court within a period of
four weeks from the date of uploading of the
order.
3. If the costs are paid or deposited within time,
then the suit No. 2180/2014 shall stand
restored to its original stage.
(AJIT N. MARE)
Judge,
Date : 26.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 26.03.2021
Transcribed on : 30.03.2021
HHJ Signed on : 30.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
31.03.2021 5.00 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 26.03.2021
Order signed by P. O. on 30.03.2021
Order uploaded on 31.03.2021
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