Final Order 1

Order Details: Order
Pdf Text: Nm no.344019Su no.199715 1
MHCC040085442019
IN THE BOMBAY CITY CIVIL COURT AT DINDOSHI
BORIVALI DIVISION, GOREGAON, MUMBAI
NOTICE OF MOTION NO.3440 OF 2019
IN
SUIT NO.1997 OF 2015
Mrs.Alka Laxman Ahire. .. Plaintiff
V/s
1. Mr.Ranjit Chandrakant Bansi & Ors. ..Defendants
Appearance:
Ld. Adv.J.K.Shahh for plaintiff.
None present for defendants.
CORAM: Her Honour Judge
Smt. Neeta S. Anekar
(Court Room No.6)
DATE : 04th January 2024
ORDER
Present Notice of Motion is taken out by plaintiff for
recalling the order dtd.9.9.2019 by which Suit No.1997 of 2015 was
dismissed for default.
The case of the plaintiff is as follows.
2. The plaintiff has filed Suit No.1997 of 2015 and taken out
Notice of Motion No.374 of 2015 for urgent relief. The Court by order
dtd.28.3.2016 granted ad interim relief in favour of the plaintiff. The
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Nm no.344019Su no.199715 2
issues were framed and the suit was adjourned for filing evidence of the
plaintiff. On 9.9.2019 when the suit was adjourned for evidence the
advocate for plaintiff was held up in another court and the suit was
dismissed. The plaintiff has good case on merits. If Notice of Motion is
not allowed, she would suffer serious prejudice. Hence, the Notice of
Motion.
3. It is a matter of record when the Notice of Motion has
proceeded without reply filed by defendants.
4. I have heard plaintiff. I have gone through entire record of
the case. The record shows that Suit No.1997 of 2015 was filed for
declaration that the plaintiff is co owner of the suit flat / suit premises
and have interest in the same and for partition. It is to be seen that on
14.8.2015 the Court by passing order restrained defendant no.1 from
creating third party interest in respect of the suit premises, until further
orders. The record shows that issues were framed by the Court on
2.5.2019. Thereafter, the case was kept for evidence. The record shows
that on 9.9.2019 the suit was dismissed for want of prosecution. The
record also shows that on 15.10.2019 the plaintiff took out present
Notice of Motion for restoration.
5. It is to be seen that the suit is filed for partition. As per case
of the plaintiff when the matter was called out her advocate was busy in
some other court. If the cause title of the plaint is seen, the plaintiff is
resident of Hyderabad. In such circumstances, it might not have been
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possible for her to remain present on the date when the suit was
dismissed. In such circumstances, if the nature of the suit is seen if one
opportunity of being heard on merits is not given to the plaintiff, she
would suffer to the prejudice. As against this if such opportunity is
given to her, the defendants would not suffer serious prejudice because
the case to proceed on merits. And therefore, in the interest of Justice in
order to clear fair trial, I am inclined to consider the present Notice of
Motion. Hence, I pass following order.
ORDER
1. The Notice of Motion No.3440 of 2019 is made absolute in terms
of prayer clause (a) and (b).
2. The Suit No.1997 of 2015 is restored to its file.
3. The Notice of Motion No.3440 of 2019 is disposed of.
(Smt. Neeta S. Anekar)
04.01.2024 Judge
Mumbai City Civil & Sessions Court,
Borivali Division, Dindoshi, Mumbai
Dictated on : 04.01.2024
Transcribed on : 05.01.2024
Checked on : 08.01.2024
HHJ signed on : 08.01.2024
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Nm no.344019Su no.199715 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
Date : 08.01.2024 Mrs. P. P. Khanvilkar
Time : 2.00 p.m. (Stenographer GradeI)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court room
no.)
HHJ Smt.Neeta S. Anekar
Court Room No.6
Date of Pronouncement of
JUDGMENT/ORDER
04.01.2024
JUDGMENT/ORDER signed by P.O.
on
08.01.2024
JUDGMENT/ORDER uploaded on 08.01.2024
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