Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion No 96 of 2018
In
L.C.Suit No 1269 of 2008
MHCC010003262018
Mr. Keshav Sadashiv Shigam ..Plaintiff
V/s
Manshanti Coop Hsg. Society & Ors ..Defendant
Advocate Shri Sandeep Bane for plaintiff.
Advocate Shri Hasan Khan for defendant no. 2 & 3
Advocate Sutar for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 31st July 2018.
(Court Room No.06)
O R D E R
1 Defendant no. 2 and 3 have taken out this notice of motion
to set aside no written statement order against them, condonation of
delay of 1725 days in filing the written statement and allow them to
file the written statement on record.
2 According to defendant, plaintiff has filed the present suit
against the defendants for various reliefs. Plaintiff has moved an
application for ad interim relief. The said application was rejected by
this Court. Defendant nos. 2 & 3 has engaged advocate and he used to
update defendants regarding the progress of the suit. Thereafter, the
suit was kept for evidence of the plaintiff. The defendants advocate
inquired with the defendants about the writ of summons. Defendants
supplied the documents to his advocate and the written statement was
prepared. The delay was caused for preparation of written statement
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because the office of the defendant was shifted and the documents
were misplaced. Thereafter, the copy of the written statement was kept
in the file of defendants however, due to inadvertently they failed to
give the copy to their advocate. Thereafter summer vacation started.
3 Defendants further contended that in the mean time
defendants lost the track of the matter. Defendant no. 2 was unwell.
Defendants were under impression that the written statement was
filed . However, the same was not filed in the Court. Thereafter, the
same was not filed in the Court. Thereafter, again the advocate of
defendants drafted written statement. The said act of non filing the
written statement of defendants was not intentional. Defendants are
lay man and they were not aware as to the paper and proceeding and
when the writ of summons was served. There was no intention of the
defendants to delay the hearing of the suit. Thus, there are sufficient
grounds to condone the delay. The circumstances were such that
prevented the defendants from filing the written statement. Hence,
prayed to condone the delay in filing the written statement and permit
them to file written statement on record.
4 Plaintiff filed affidavit in reply of Power of Attorney holder
of plaintiff Shri Balchandra Singam. According to plaintiff, defendant
no. 2 and 3 are the builders and developers and they have bunch of
lawyers who appeared for them and gave them day to day updates.
Defendants are well aware of the legal procedure. Hence, it cannot be
said that due to inadvertently they could not file written statement.
Hence, amongst these grounds prayed to dismiss the notice of motion.
5 I have heard Shri Hasan Khan advocate for defendant ns. 2
& 3. Shri Sandeep Bane advocate for plaintiff.
6 Shri Hasan Khan advocate for defendant nos 2 & 3 has
submitted that the delay is not intentional. The defendant no. 2 was
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not feeling well. Defendants are lay man and they are not aware about
the procedure of the Court. In fact earlier written statement was
prepared. However, defendants could not give the same to their
advocate for filing in the Court. In the mean time defendants shifted
their office and the documents and writ of summons were misplaced.
There was no intention on the part of defendants to delay the hearing
of the suit. There are sufficient ground to condone the delay. Hence, he
prayed to allow the defendants to file the written statement on record.
In support of his contention he relied on :
1- Bitesh Hanumantrao Sagar & Ors V/s Virgina Anthony
Misquitta and others , Appeal No. 329 of 2011 in Notice of Motion
no. 978 of 2011 in Suit No 1570/83 with Notice of Motion No.
1773 of 2011.
2 Smt. Asha W/o Namdeorao Hedaoo V/s Miss Rashmi
Trilokchandra Hedaoo and another, Writ petition no. 1109/2014.
3 Rani Kusum V/s Kanchan Devi and Ors. (2005)Supreme
(SC)1050 .
4 Bhoomi Homes V/s Kamla Ashish Tower Coop Housing
Society Ltd and anr. Writ Petition Stamp No. 29237 of 2014
7 Shri Sandeep Bane advocate for plaintiff has invited my
attention towards roznama . According to him, present suit is filed in
the year 2008. Defendants have appeared in the suit. Defendants have
resisted the notice of motion. The suit is for hearing. Defendants did
not file written statement as per the mandate of order 8 rule 1 of Civil
Procedure Code. Defendant nos. 2 & 3 are builders and developers.
They are educated and they have the bunch of lawyers. Therefore, it
cannot be said that due to inadvertently they could not file written
statement. Now the trial is commenced. Hence, he prayed to dismiss
the notice of motion.
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8 As per order 8 rule 1 of Civil Procedure Code, 1908, the
defendant shall, within thirty days from the date of service of summons
on him, present a written statement of his defence. Provided that
whether the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the written statement
on such other day, as may be specified by the Court, for reasons to be
recorded in writing and on payment of such costs as the Court deems
fit, but which shall not be later than one hundred twenty days from the
date of service of summons and on expiry of one hundred twenty days
from the date of service of summons, the defendant shall forfeit the
right to file the written statement and the Court shall not allow the
written statement to be taken on record.
In Bitesh Hanumantrao Sagar & Ors V/s Virgina
Anthony Misquitta and others , Appeal No. 329 of 2011 in
Notice of Motion no. 978 of 2011 in Suit No 1570/83 with
Notice of Motion No. 1773 of 2011 Hon'ble High Court held in
para no. 21 that:
In our view, denying the opportunity to the Defendant Nos
1(A), 1(B) and (1F) to file written statement would
frustrate the rights rather than to achieve justice on
technical grounds when rights of the plaintiffs can be
protected by imposing cost on the Defendants and by
expediting the hearing of suit.
In Smt. Asha W/o Namdeorao Hedaoo V/s Miss
Rashmi Trilokchandra Hedaoo and another, Writ petition no.
1109/2014 Hon'ble High Court held in para no. 8 that :
In the case in hand, the reason stated was ailment of
defendant no.1 and the application was supported by the
medical certificate. Under these circumstances, I think the
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learned trial judge could have graciously permitted filing
of the written statement in the larger interest of justice
subject to reasonable costs so as to decide the suit on
merits and in accordance with law. In that view of the
matter, the writ petition needs to be allowed because
procedure is handmaid of justice rather than a mistress.
The procedural technicality ought not be allowed to
override cause of justice.
In Rani Kusum V/s Kanchan Devi and Ors.
(2005)Supreme (SC)1050 Hon'ble Supreme Court held that:
Order VIII, Rule 1 after the amendment casts an obligation
on the defendant to file the written statement within 30
days from the date of service of summons on him and
within the extended time falling within 90 days. The
provision does not deal with the power of the court and
also does not specifically take away the power of the court
to take the written statement on record though filed
beyond the time as provided for. Further, the nature of the
provisions contained in Order VIII, Rule 1 is procedural. It
is not a part of the substantive law.
In M/s Bhoomi Homes V/s Kamla Ashish Tower Coop
Housing Society Ltd and anr. Writ Petition Stamp No. 29237 of
2014 Hon'ble High Court in para no.6 held that :
In so far as Order VIII Rule 1 of the Code of Civil
Procedure is concerned, it is well settled by catena of
judgments of the Apex Court that the same is directory and
no mandatory, and for good and sufficient reasons the
time stipulated by Order VIII Rule 1 of the Code of Civil
Procedure can be extended.
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9 Thus, the Hon'ble Supreme Court and Hon'ble High Court
held that the provisions of order 8 rule 1 is directory in nature. If there
are sufficient grounds which prevented the defendants from filing
written statement within a stipulated time as per order 8 rule 1 of CPC
then the Court has power to allow the defendant to file written
statement.
10 Defendant no. 2 & 3 are the builders and developers of the
suit premises. Defendant no.1&4 have filed written statement.
Thereafter, my Ld predecessor framed the issues on 14/9/2012 and
suit was for hearing. Earlier defendants had filed application and raised
the issue of maintainability of suit. Accordingly my Ld predecessor
framed the issue of maintainability of suit. After hearing of both sides
this court held that suit is maintainable. The present suit is filed in the
year 2008. Defendants admitted that writ of summons was served on
them. Roznama shows that defendant nos 2 & 3 appeared in the suit
through advocate. The advocate of the defendant nos 2 & 3 is
representing the suit. Therefore, defendant nos 2 & 3 had to file written
statement as per the mandate of order 8 rule 1 of Civil Procedure Code
10 According to defendant, defendant no 2 was not feeling
well however, defendant did not adduce any documents in support of
their contentions. Defendants have also not produced any documents
to show that there was a sufficient reason which prevented them to file
written statement within a time. Therefore, reasons mentioned by
defendants are not sufficient to allow them to file written statement on
record. There is a delay of about 9 years in filing the written statement
on record. The delay is not satisfactorily explained by the defendants.
Hence, I find that defendants failed to make out the case that due to
sufficient grounds they prevented for filing the written statement. Thus
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the notice of motion is devoid of merits and I pass the following order:
ORDER
1 Notice of Motion No. 96/18 is dismissed.
2 Notice of motion is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 31/07/2018
Typed on : 2/8/2018
Signed by HHJ. : 3/8/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
3/8/2018 Mrs. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
31/07/2018
JUDGEMENT/ORDER signed by
P.O. on
3/8/2018
JUDGEMENT/ORDER uploaded
on
4/8/2018
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