Allowed

D. Prabhu @ Desmond D'Costa Prabhu v. Gateway Properties Pvt. Ltd. and Ors.

Bombay HC19 Sept 2019WP/4134/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to set aside a civil court order refusing to restore a notice of motion dismissed for default. The Court granted indulgence to allow one opportunity for the petitioner to contest the matter, subject to payment of costs and future cooperation without unnecessary adjournments.

What did the court decide?

The order dated 16/11/2018 refusing restoration of Notice of Motion No. 3150/2017 is set aside; petitioner must pay Rs.5000 costs and cooperate with the trial court.

D. Prabhu @ Desmond D'Costa Prabhu Vs Gateway… — Civil Procedure and Limitation | Bombay HC (2019)

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wp 4134-19.doc

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DDR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 4134 OF 2019

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D. Prabhu @ Desmond D’Costa Prabhu..Petitioner
vs.
Gateway Properties Private Limited
& ors...Respondents

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Mr. M.R. Govilkar for petitioner.
Mr. J.V. Parmar i/b. L.C. Tolat & Co. for respondent No.1.
Arsh Misra i/v. M.V. Kini for respondent No.2 – BPT.
Ms. Rohini Bhadarkar i/b. V.Y. Sanglikar for respondent No.3.

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….
CORAM : M.S.KARNIK, J.

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 DATE : 19th SEPTEMBER, 2019

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P.C.:

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What is prayed in this Petition is for setting aside the

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order dated 16th November 2018 passed by the City Civil Court
refusing to restore Notice of Motion No. 3150 of 2017 which
was dismissed in default for want of prosecution.

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2.Learned counsel for the petitioner states that the
petitioner was not keeping well. He would further submit that
the Advocate engaged from the Legal Aid Panel on petitioner’s
behalf could not remain present when the matter was called out.

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After the Advocate concerned reached the Court, an application
was made for restoring Notice of Motion No. 3150/2017. The
same however was rejected by the impugned order.

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3.The petitioner’s prayer is opposed by learned counsel
for respondent No.1 – original plaintiff. Learned counsel for
respondent No.1 submits that the petitioner has no locus as he
claims to be legal heir of defendant No.7. He further says that
the petitioner is financially sound. By misguiding the Court an
order for representation through Legal Aid Panel was requested
and which was granted. It is made clear that it will be open for
respondent No.1 to raise all these objections before the trial
Court. Even learned counsel for respondent Nos. 1 to 3 opposed
the Petition.

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4.However, in my opinion, only by way of an
indulgence for the reasons mentioned in the application and
with a view to grant one opportunity to the petitioner to contest
Notice of Motion No. 3150 of 2017, that the order dated
16/11/2018 is set aside.

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5.It is made clear that the petitioner will co-operate

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with the trial Court and will not seek unnecessary adjournments
when Notice of Motion No. 3150 of 2017 is heard afresh on
merits. It is further made clear that I have not considered any of
the issues on merits and all contentions are kept open.

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6.The trial Court to decide Notice of Motion No. 3150

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of 2017 on its own merits without being influenced by any
observations made by me in this order.

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7.The Petition is allowed subject to cost of Rs.5000/-

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to be paid to the plaintiff by the petitioner within a period of 2
weeks from today.

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8.The Petition stands allowed in the above terms.

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Digitally signed by Diksha Diksha Rane Rane Date:2019.09.23 19:21:40 +0530

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D. Prabhu @ Desmond D'Costa Prabhu v. Gateway Properties Pvt. Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

D. Prabhu @ Desmond D'Costa Prabhu v. Gateway Properties Pvt. Ltd. and Ors.

Case brief

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What did the court decide?

What the court decided

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