Order 3

Order Details: Order on Exhibit
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CNR No. MHSCA-30014142022
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Order Below Exhibit - 22
In
R. A. E. & R. Suit No. 580 of 2022
1. Shri Kanhaiyalal Jitanprasad Tiwari and Ors. ... Plaintiffs.
V/s.
1. Shri Dinkar Dwarikalal Mishra and Ors. ... Defendants.
Appearance:-
Ld. Advocate for the plaintiffs : Mr. D. R. Pandey.
Ld. Advocate for the defendant Nos.1 & 2 : Mr. S. K. Shinde.
Coram :
Date :
R. R. Kale,
The Then Judge,
C.R. No. 35 (B.B.)
08/01/2025.
ORAL ORDER :-
(As per Office Order No. 183 of 2024 dated 21/12/2024 and Circular
No. 3 of 2025 dated 04/01/2025.)
Present application is taken out by the defendant Nos. 1
and 2 for dismissal of the suit under Order IX Rule 8 of the Code of Civil
Procedure, 1908.
2. The defendant Nos. 1 and 2 have submitted in brief, in their
application that, plaintiffs have not filed the affidavit of evidence in lieu
of examination-in-chief of P.W. 1 despite repeated opportunities. Even
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the last chance was given to the plaintiffs to lead evidence. However,
the plaintiffs have not filed the affidavit of evidence from which it
seems that, they are no longer interested in proceeding with the matter,
hence, the present suit be dismissed for non prosecution by imposing
heavy cost of Rs. 10,000/- on the plaintiffs. Contending all these
grounds, the defendant Nos. 1 and 2 have prayed for grant of the
application.
3. The plaintiffs have strongly resisted the present application
by filing detailed reply at Exh. 24 and urged for dismissal of the
application with costs. The plaintiffs in their reply vide Exh. 24, in brief,
submit that, present application is false, frivolous, vexatious and liable
to be dismissed with cost. The defendant Nos. 1 and 2 have not shown
sufficient cause in order to allow their prayer under Order IX Rule 8 of
the Civil Procedure Code, 1908 as when the suit was called on for
hearing, the plaintiffs have appeared. Therefore, present application is
not maintainable and thus, be dismissed with costs.
4. Heard both sides at length. The Ld. Advocate on behalf of
the parties have advanced their arguments as per their respective
contentions. A perusal of record and Roznama goes to show that, the
issues are framed in the present suit on 25/07/2023 and the plaintiffs
have submitted their list of witnesses at Exh. 16 on 26/09/2023.
Thereafter, the defendant Nos. 1 and 2 submitted their list of witnesses
at Exh. 17 on 25/10/2023. It is also a matter of record that, defendants
had taken out application for framing of additional issues at Exh. 18
and after giving opportunity to both sides to argue the same, it came to
be partly allowed vide order dated 01/02/2024. Thereafter, the suit was
ordered to be kept for filing evidence of the plaintiffs. Thereafter, on
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subsequent dates i.e. on 11/03/2024 and 15/04/2024 the plaintiffs
could not file affidavit of evidence of their witness and therefore, the
last chance was granted to them on 15/04/2024 to lead the evidence.
Then on subsequent date i.e. on 18/06/2024, the plaintiffs had taken
out application vide Exh. 21 under Section 28 of the Maharashtra Rent
Control Act, 1999. On the same day the defendant Nos. 1 and 2 have
filed present application under Order IX Rule 8 of the Civil Procedure
Code.
5. The provision of Order IX Rule 8 of the Civil Procedure Code,
1908 states as under:-
“8. Procedure where defendant only appears:- Where the
defendant appears and the plaintiff does not appear when the
suit is called on for hearing, the Court shall make an order
that the suit be dismissed, unless the defendant admits the
claim, or part thereof, in which case the Court shall pass a
decree against the defendant upon such admission, and,
where part only of the claim has been admitted, shall dismiss
the suit so far as it relates to the remainder”.
6. On care perusal of above provision it can be seen that, the
defendant Nos. 1 and 2 have not made out their case in order to
consider their prayer under above provision. Moreover, when the suit
was called on for hearing on 18/06/2024, the plaintiffs had remained
present before this Court and filed application vide Exh. 21. Therefore,
as the case is not made out under the said provision for dismissal of the
present suit, the present application is liable to be dismissed. While
doing so, no prejudice would be caused to any of the defendants.
Therefore, in view of above all discussions, I proceed to pass following
order :-
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: ORDER :
1. Application vide Exh. 22 stands rejected.
(Dictated and pronounced in Open Court.)
(R. R. Kale)
Date : 08/01/2025. The Then Judge,
C.R. No. 35 (B.B.)
Order dictated on : 08/01/2025
Order transcribed on : 08/01/2025
Order checked & signed on : 08/01/2025
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