Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 94-2019 in SC. Suit no. 159-2018
1 Date : 10.10.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 94 OF 2019
IN
S.C. SUIT NO. 159 OF 2018
(CNR NO.MHCC01 0002382019)
Elvira John D’souza .. Plaintiff
Versus
Eugene Francis Fernandes & Ors. .. Defendants
Appearances :
Plaintiff and his Advocate absent.
Adv. Mrs. Supriya Gurav for defendant no. 1 to 3 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date :10.10.2019
ORDER
1. The defendants filed instant Notice of Motion for setting
aside “No W.S.” Order dated 20.08.2018 and for condonation of
170 days delay in filing Written Statement on record.
2. It is contended by the defendants that they have received
copy of plaint in the month of April 2018 alongwith the Notice of
Motion filed by the plaintiff. Accordingly, they met with their
Advocate to file their Vakalatnama and they appeared on
25.04.2018. The matter was adjourned to 20.08.2018 for filing of
Written Statement of defendant no. 1 to 3. However, during the
aforesaid period, the defendants were unable to collect the
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NM 94-2019 in SC. Suit no. 159-2018
2 Date : 10.10.2019
documents and to provide sufficient instructions to their advocate.
Therefore, Written Statement could not be filed. The defendants
are laymen having no knowledge of law to file Written Statement
within limitation. Therefore, delay of 170 days has been caused.
It is further contended by the defendants that if, the delay has not
been condoned, great prejudice would be caused to the defendants
rights to defend.
3. The Notice of Motion is opposed by the plaintiff by filing say
overleaf on the ground that defendant no. 1 to 3 failed to explain
the delay.
4. Heard both the sides. Perused Notice of Motion and reply.
The defendant no. 1 and 2 are old aged women. The defendants
filed instant Notice of Motion on Affidavit stating reasons that due
to non availability of sufficient documents and insufficient
knowledge of law of limitation, the delay has been caused. The
plaintiff did not oppose the application seriously and disputed the
reasons assigned by the defendants. In my view, if the delay is
not condoned, the suit will not be decided on merit. The
defendants are ready to pay cost if, the delay is condoned.
Therefore, in view of the above fact, in my view, the delay can be
condoned by imposing reasonable cost of Rs. 3,000/ to be payable
by the defendant no. 1 to 3 to the plaintiff. Thus, I proceed to pass
the following order :
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NM 94-2019 in SC. Suit no. 159-2018
3 Date : 10.10.2019
ORDER
1. Notice of Motion No. 94 of 2019 is hereby made absolute in
terms of prayer clause “1 to 4” on condition to pay cost of Rs.
3,000/ to be payable by defendant no. 1 to 3 to the plaintiff.
2. After payment of the aforesaid cost, the Written Statement of
the defendants be taken on record.
3. Notice of Motion No. 94 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 10.10.2019 Gr. Bombay
Dictated on : 10.10.2019
Typed on : 10.10.2019
Draft Submitted on : 10.10.2019
Checked on : 14.10.2019
Signed on : 14.10.2019
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NM 94-2019 in SC. Suit no. 159-2018
4 Date : 10.10.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
15/10/2019 at 12.00 noon (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
10/10/2019
JUDGMENT/ORDER signed by P.O.
on
14/10/2019
JUDGMENT/ORDER uploaded on 15/10/2019
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