Bombay High Court
Mahendra Mangruram Gupta And Anr vs Rajdai Nandlal Shaw And 7 Ors on 24 February, 2020
Author: Sarang V. Kotwal
Bench: K.K. Tated, Sarang V. Kotwal
1
15.IA-1-20-APPL-568-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.1 OF 2020
IN
APPEAL (Lodging) NO. 568 OF 2019
IN
NOTICE OF MOTION NO. 1189 OF 2014
IN
SUIT NO.443 OF 2013
Mahendra Mangruram Gupta And Anr ...Applicants
Versus
Rajdai Nandlal Shaw And Ors ...Respondents
....
Mr. S.R. Nargolkar i/b. S.M. Railkar, Advocate for the Applicants.
Mr. V.Y. Sanglikar, Advocate for Respondent No.1.
Mr. N.A. Bandodkar, 2nd Asstt. To Court Receiver is present in Court.
....
CORAM : K.K. TATED &
SARANG V. KOTWAL, JJ.
DATE : 24th FEBRUARY, 2020 P.C.
1. Heard learned Counsel for the parties.
2. Advocate Mr. S.R. Nargolkar appearing on behalf of the applicants states that all other respondents are duly served. Statement is accepted.
3. By this Interim Application, the applicants / original defendant Nos.1 & 2 are seeking to restore Appeal (Lodging) No.568/2019 which stand dismissed in view of the conditional 1/5 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 14:26:01 ::: 2
15.IA-1-20-APPL-568-19.odt order dated 9.12.2019 passed by this Court in Interim Application No.1/2019.
4. Learned Counsel Mr. S.R. Nargolkar for the applicants submits that in the present proceedings this Court by order dated 9.12.2019 passed in Interim Application No.1/2019 directed the applicants to remove all office objections on or before 4.1.2020 failing which appeal to stand dismissed without referring back to the Court. He submits that it remained inadvertently on the part of Advocate on record for the applicants to remove the office objections. In support of this submission, he relied on paragraph-6 of the Interim Application, which reads thus :
"6. The Applicants submit that order dated 9th December 2019 consists of various directions including direction to the Applicants to remove the office objections. The said direction was a conditional order directing that the office objections had to be removed on or before 4 th January 2020 failing which the Appeal was to stand dismissed without referring the same to the Hon'ble Court. The Applicants submit that their Advocate could not remove the office objections on or before 4th January 2020 due to oversight resulting in the abovementioned Appeal being dismissed. The Applicants submit that after the matter was adjourned for hearing to 17 th January 2/5 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 14:26:01 ::: 3
15.IA-1-20-APPL-568-19.odt 2020, the Advocate for Applicants twice went to the Registry of this Hon'ble Court to do the necessary compliances but the Registry had not received the papers in the proceedings till 20th December 2019 i.e. till the last day of working of the Hon'ble Court before the Christmas Vacation. The Applicants submit that their Advocate was under bonafide impression that the objections had to be removed on or before 10th January 2020 and accordingly between 7th and 8th January 2020 removed all the office objections and the papers were submitted to the concerned Officer for purpose of registration of the Appeal when it was realized that though the Advocate for Applicants had removed all the office objections, the same had to be removed on or before 4th January 2020 and not before 10th January 2020. In the process the Appeal stands dismissed as the conditional order has taken effect."
5. Learned Counsel for the applicants further submits that in the interest of justice, this Hon'ble Court be pleased to extend the time to remove all office objections and restore the appeal on file for hearing on its own merits. He submits that if present Interim Application is not allowed irreperable loss will be caused to the applicants. He submits that because of the mistake on the part of the Advocate, the litigant should not suffer.
6. On the other hand, learned Counsel Mr. Sanglikar 3/5 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 14:26:01 ::: 4
15.IA-1-20-APPL-568-19.odt appearing for respondent No.1 vehemently opposed the present Interim Application. He filed affidavit-in-reply dated 18.1.2020. He submits that even before learned Single Judge the applicants remained absent on 3.7.2017 and 1.8.2017 for hearing of Notice of Motion No.1189/2014. That time also, the applicants have given reason of inadvertence. Therefore, there is no question of allowing present application. He submits that because of pendency of present appeal, respondent No.1 is deprived of the fruits of the impugned order passed by the learned Single Judge. Hence, there is no substance in the present application and same be dismissed with costs.
7. We have heard the learned Counsel for the parties for some time. It is to be noted that because of mistake on the part of the Advocate on record for the applicants, the litigant should not suffer. In the present proceedings this Court by order dated 9.12.2019 directed the Advocate for the appellants to remove all office objections on or before 4.1.2020. It remained on the part of the Advocate on record for the applicants to remove all office objections within time.
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15.IA-1-20-APPL-568-19.odt
8. Considering the submissions made by the learned Counsel for the applicants and paragraph-6 of the Interim Application, we are satisfied that the applicants have made out a case for allowing this application. But, at the same time, the applicants will have to pay the costs of Rs.5,000/-. Hence, the following order is passed :
i. Appeal (Lodging) No.568/2019 along with pending applications, is restored on file for hearing on its own merits.
ii. For removal of office objections in Appeal (Lodging) No.568/2019 as per earlier order dated 9.12.2019, the time is extended till 7.3.2020.
iii. The applicants to pay costs of Rs.5,000/-.
iv. Costs to be deposited in Kirtikar Law Library, High Court, Main Building, Mumbai on or before 29.2.2020 and place on record the receipt to that effect, failing which Interim Application shall stand dismissed without referring back to court.
v. Interim Application stands disposed of accordingly.
(SARANG V. KOTWAL, J.) (K.K. TATED, J.) Deshmane (PS) 5/5 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 14:26:01 :::