Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. MHCC010003432019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.127 OF 2019
IN
S.C. SUIT NO.5782 OF 2005
(HIGH COURT SUIT NO.220 OF 2005)
MR. FAROOQ MOHAMMED PATEL ] … Plaintiff
V/s.
M/S.RAY ESTATE & ORS. ] ... Defendants
Appearances :-
Ld. Adv. Mr. Rahul Raut for plaintiff.
Ld. Adv. Mr. Sachin Chaudhari for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G .
BORLEPWAR
(C.R.No.13)
DATED : 21st January, 2021
ORAL ORDER
1. Defendant took out this Notice of Motion for condonation
of delay in filing the written statement and taking written statement on
record.
-- 1 of 5 --
- 2 - NM 127/19 in
SCSuit 5782/05
2. Perused Notice of Motion, affidavit in support of Notice of
Motion and affidavit in reply to the Notice of Motion.
3. Heard Learned Advocate Mr. Rahul Raut for plaintiff and
Learned Advocate Mr. Sachin Choudhary for defendants.
4. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether delay in filing written
statement of defendant No.9 can be
condoned ?
In the affirmative.
2. Whether defendant No.9 can be
permitted to file written statement ?
In the affirmative.
3. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 3.
5. In brief, it is contention of defendant No.9 that defendant
No.9 purchased the suit property on 16.12.2014. Defendant is M/s.
Nina Realtors Pvt. Ltd.
6. Plaintiff filed Chamber Summons No.137 of 2017 to add
defendant No.9 as a party defendant. Defendant No.9 is added as a
party defendant as per Order dated 21.03.2018 passed in the said
Chamber Summons writ of summons are served upon defendant No.9
on 04.04.2018. Defendant No.9 could not file written statement within
-- 2 of 5 --
- 3 - NM 127/19 in
SCSuit 5782/05
30 days under Order 8 Rule 1 of the Code of Civil Procedure because
defendant No.9 had to collect some documents to prepare written
statement. Advocate of defendant No.9 was on leave for his wedding
from 04.06.2018 to 05.07.2018. Defendant No.9 contacted his
Advocate on 06.07.2018 and written statement is prepared on
09.07.2018. Written Statement of defendant No.9 was sought to be
tendered before the Court but it was not accepted on the ground of
delay. Thereafter, matter adjourned on 30.08.2018. On 30.08.2018 the
Presiding Officer was on leave, therefore, matter adjourned. Advocate
for defendant No.9 tendered the said written statement on 10.12.2018
but it was not taken on record because of delay in filing written
statement. Therefore, delay be condoned.
7. In brief, it is contention of the plaintiff that there is delay of
228 days in filing written statement. The story mentioned in para No.6
of Affidavit in support of Notice of Motion is not believable. There is no
reference in the Roznama / Noting dated 09.07.2018 that defendant
No.9 sought to tender written statement on record. All the other
adverse contentions are denied.
8. Defendant No.9 is served upon writ of summons on
04.04.2018. The Notice of Motion is filed on 29.03.2019.
9. Perused Order 8 Rule 1 of the Code of Civil Procedure.
As per Order 8 Rule 1 of Code of Civil Procedure defendant has to file
written statement within 30 days from the date of service of summons.
As per the proviso of Order 8 Rule 1 where the defendant fails to file the
written statement within the said period of thirty days, defendant can
-- 3 of 5 --
- 4 - NM 127/19 in
SCSuit 5782/05
be permitted to file written statement within 90 days, if defendant
makes out grounds for delay in filing written statement. In view of Rule
9 and 10 of Order 8 of the Code of Civil Procedure, the proviso of Order
8 Rule 1 is not mandatory but it is directory in nature.
10. There is delay in filing written statement. Considering the
grounds of delay mentioned in the Affidavit in support of Notice of
Motion. I am of the opinion that for purpose of deciding the suit on
merit, the said delay can be condoned and defendant No.9 can be
permitted to file written statement. Hence, I record my findings to
point Nos.1 and 2 in the affirmative and point No.3 the Notice of
Motion is allowed as per final order. Hence following order:
ORDER
Notice of Motion no. 127 of 2019 in Suit no. 5782 of 2005 (H.C. Suit
No. 220 of 2005) is allowed as under-
1. Delay in filing WS of defendant no.9 is hereby condoned.
2. Defendant no.9 is permitted to file Written Statement on record till
next date.
3. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 21/01/2021 City Civil Court, Gr. MUMBAI
Dictated on : 21/01/2021.
Transcribed on : 22/01/2021.
checked on : 22/01/2021.
Signed on : 22/01/2021.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
-- 4 of 5 --
- 5 - NM 127/19 in
SCSuit 5782/05
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.01.2021 at 05.10 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 21/01/21
Judgment/order signed by P.O. on 22/01/21
Judgment/order uploaded on 22/01/21
-- 5 of 5 --