Order 1

Order Details: Notice of Motion
Pdf Text: NM In SS 1239/16 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 28 OF 2018
(CNR NO.MHCC010000452018)
IN
SUMMARY SUIT NO.1239 OF 2016
Mr.Nitul Naginbhai Mehta ...Plaintiff
V/s
M/s.Shivam Papers & Anr. ...Defendants
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 22/02/2019
Adv. Mr.Yadav for plaintiff.
Adv. Mr.Bharapuria for defendants.
ORDER BELOW NOTICE OF MOTION NO.28/18
1. This Notice of Motion is taken out by the defendant for
condoning the delay of 30 days in filing the reply cum leave to defend
to the Summons for Judgment No.247/17. The plaintiff has resisted to
the said Notice of Motion by filing reply.
2. Read the Notice of Motion and reply. Heard.
3. The learned advocate for the defendant has submitted that
on 5/12/2017 the advocate for defendant was present and intended to
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inform the Court regarding the evidence of the defendant but the Court
passed the order that the time for filing reply is already expired and
matter was proceeded without reply to the Summons for Judgment. It
is submitted that the defendant has meritorious defence and he will
raise the triable issue in his reply and leave to defend. It is submitted
that if the delay is not condoned serious prejudice would cause to the
defendant. Therefore, it is requested to make the Notice of Motion
absolute.
4. Per contra, the advocate for plaintiff has submitted that the
defendant has not filed the reply to the Summons for Judgment within
time therefore the said order dated 5/12/2017 is legal and proper. It is
submitted that no proper explanation is given by the defendant for
condoning the delay. Lastly, it is requested to dismiss the Notice of
Motion.
5. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the case record. There is no
dispute that the defendant did not file the reply within 10 days from
the service of Summons for Judgment upon him by the plaintiff. It
appears that the defendant was not keeping well and due to that he
was not in a position to file the reply to the Summons for Judgment
within the prescribed time.
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6. It is well settled that the Court has to adopt the liberal
approach while considering the prayer of condonation of delay.
Duration of delay is insignificant. The Court has to take into account if
there is a acceptable or pardonable explanation. The primary function
of the Court is to adjudicate the disputes between the contesting parties
and to advance substantial justice. The rules of limitation are not made
to harm the valuable rights of he parties. The discretion is given to the
Courts to condone the delay and that discretion should be exercised to
advance substantial justice. Considering the reason mentioned by the
defendants in the affidavit. In my opinion the delay caused in filing the
reply to the Summons for Judgment is not intentional or malafide.
Considering the all aspects of the case the interest of justice requires to
allow the defendant to file his reply to the Summons for Judgment and
leave to defend, subject to costs to the plaintiff. In the result, following
order:
: ORDER :
1. Notice of Motion no.28/18 is allowed.
2. The delay caused in filing the reply to the Summons for Judgment
is condoned and order dated 5/12/17 “Suit to proceed without reply to
SJ” is set aside subject to costs of Rs.3500/ payable by defendants to
the plaintiff, on or before the next date.
3. The payment of costs is condition precedent.
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4. Notice of Motion no.28/18 is disposed of accordingly.
(M.M.UMAR)
Judge,
22/2/2019 City Civil Court, Gr. Mumbai
Date of Dictation : 22/2/19.
Date of Transcription : 22/2/19.
Date of signature : 22/2/19
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22/2/19 5.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
22/2/19
Judgment/order signed by P.O on 22/2/19
Judgment/order uploaded on 22/2/19
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