Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.70/19 in SC 2423/2012 1
Date :26.07.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.70 OF 2019
IN
S.C. NO. 2423 OF 2012
(CNR.NO.MHCC010043492019)
Anantkumar Asharam Jain ) ….Plaintiff
VERSUS
Ramji Khimji Gangar. ) .... Defendant
Appearances:
Mr. Anant Jain, Ld. Advocate for plaintiff present.
Mrs. Reshmi Parab, Ld. Advocate for defendant present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Addl. Judge
CR No. : 07
Dated : 26th July, 2019.
: ORDER :
1. The Defendant has filed instant Notice of Motion for condonation
of 2190 days delay in filing Written Statement. It is contended by the
defendant that Plaintiff filed suit in the month of September 2012 along
with application for adinterim relief. He was served with the adinterim
application but did not serve with the suit summons. The adinterim
relief was rejected by the court. In the mean time, within 30 days, the
defendant prepared written statement and served the copy of the same
to the Plaintiff. However, due to inadvertence of the advocate of the
defendant, the copy of written statement was remained to be filed on
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N.M.70/19 in SC 2423/2012 2
record. The aforesaid fact came to the notice of the defendant advocate
when the matter was called for hearing. Thus, it is submitted by the
defendant that due to the mistake of advocate, the written statement
was not filed on record. Hence, for the mistake of advocate, he should
not be punished. If he is not allowed to file written statement on record,
a great prejudice would be caused to his right to defend the suit. Hence,
he be permitted to file written statement on record by condoning the
delay in the interest of justice.
2. The notice of motion was dully served to the Plaintiff and he
sought time to file reply. However, inspite of granting various
opportunity to the plaintiff to file reply, he failed to file the same.
Advocate for Plaintiff opposed the application by advancing oral
argument. It is contended by him that there is no cogent and sufficient
reasons assigned by the defendant. There is inordinate delay, which
cannot be condone. If this court comes to the conclusion to condone the
delay then the delay may be condone with heavy cost.
3. Heard both the sides, Perused notice of motion and record of the
matter. It appears that the written statement was prepared and affirmed
by the defendant on 08.10.2012 and copy of the same was also served
to the Plaintiff on the same day. The plaintiff did not dispute receipt of
the copy of written statement. It appears that the matter reaches upto
hearing, till then the aforesaid mistake could not be notice by the
advocate of the defendant. Even, the court also did not pass no WS
order. The aforesaid fact goes to show that the defendant himself was
never negligent. On the contrary, he has affirmed the written statement
within 30 days. But it is due to the negligent act of the advocate, the
written statement was not filed on record.
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N.M.70/19 in SC 2423/2012 3
4. In my view, due to the act or negligence of the advocate the party
should not suffer. Even there is no reason for the advocate of defendant
to file the written statement on record when it was prepared and dully
affirmed within 30 days. In my view, due to inadvertence the written
statement could not be filed on record, for which defendant should not
suffer. Hence, I am inclined to condone the delay and permit the
defendant to file written statement on record.
5. As it was the mistake on the part of advocate of the defendant,
therefore, I am of the view, that defendant should not be penalized with
the cost. Hence, I reject the prayer of the Plaintiff for awarding the cost.
Thus, I proceed to pass the following order:
: ORDER :
1. The Notice of Motion No. 70 of 2019 is hereby made absolute in
terms of prayer clause.
2. The delay of 2190 days in filling written statement is hereby
condone. The defendant is allowed to file written statement on
record.
3. Notice of Motion No. 70 of 2019 is disposed off accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 26.07.2019 Greater Mumbai
Directly dictated on :26.07.2019
Draft submitted on :26.07.2019
Checked on :29.07.2019
Signed on :29.07.2019
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N.M.70/19 in SC 2423/2012 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
29/07/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
26/07/2019
JUDGMENT/ORDER signed by P.O.
on
29/07/2019
JUDGMENT/ORDER uploaded on 29/07/2019
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