Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.103/18 ..1.. Suit No.2208/15
CNR No.MHCC010003462018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.103 OF 2018
IN
SUIT NO.2208 OF 2015
M/s. Avis Agencies .. Plaintiff
Versus
M/s. IAR Innovation Group and others .. Defendants
Learned Advocate Paras Vira for plaintiff
Learned Advocate Savitri Pandey for defendant No.2
CORAM : HER HONOUR JUDGE
SMT. ULKA L. JOSHI
(COURT ROOM NO.31)
DATE : 21st April, 2018
: ORDER :
1. Orders dated 05/01/2016 and 27/04/2016 are under
challenge in this notice of motion
2. Story put forth by defendant No.2 in short is that:
Writ of summons is served on 9th October, 2015. Defendant
No.2 appeared through his previous advocate. However, he failed to
file written statement. He also failed to take the follow up of
proceeding. Due to lack of communication between previous advocate
and defendant no.2, he could not file written statement. Hence, this
notice of motion for delay condonation and leave to file written
statement.
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3. By filing reply plaintiff has strongly objected notice of motion.
As per plaintiff, there is inordinate delay of two years. That delay is not
properly explained. Suit is on the fag end of trial. Hence defendant is
not entitled for any relief.
4. Before entering into actual merit, let me quote that provision
of Order 8 Rule 1 of Civil Procedure Code is procedural and directory in
nature. Basic object of incorporation of Order 8 Rule 1 is to curb
mischief played by unscrupulous litigants who cause delay in disposal of
cases. Departure from time schedule is permissible in cases where
circumstances are beyond the control of parties or in cases when it is
required to prevent injustice to the other side. Reliance in that regard,
can be placed on the law laid down in case of Sambhaji and Others Vs.
Gangabai and others [(2008) 17 Supreme Court Cases 117] and in
case of State of Goa & Ors. Vs. H.B.Singh & Co. [2012 (4) ALL MR
750]. By keeping well in mind this basic requirement let me turn
towards factual aspects.
5. It is contention of defendant that due to lack of
communication between him and previous advocate he could not file
written statement within stipulated period. Admittedly, this cannot be
said to be exceptional circumstances beyond the control of party. Hence
on that ground defendant is not entitled for condonation of delay.
6. Pertinent to note that rules of procedure are made to advance
the cause of justice. Equity and substantial cause of justice always
demands opportunity. Hence with a view to decide real point in
controversy once for all on merit and with a view to avoid multiplicity
of lis delay is require to be condoned. However, considering the
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delaying tactics at the hands of defendant heavy cost is require to be
imposed. Hence I pass following order:
: ORDER :
1. Notice of Motion No.103 of 2018 is made absolute in terms of prayer
clause No.(a) to (c) subject to cost of Rs.10,000/ by defendant no.2 to
plaintiff on or before next date.
2. After payment of cost delay stands condoned and defendant no.2 is
permitted to file written statement.
3. Defendant to file written statement on next date that too after
payment of cost.
4. Failure of defendant will result into automatic cancellation of this
order.
(Pronounced in Open Court)
(Smt. U. L. Joshi)
Judge
City Civil & Sessions Court,
Date : 21/04/2018 Gr. Bombay
Typed on : 21/04/2018
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
23.04.2018, 5.25 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Smt.U.L. Joshi
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
21.04.2018
JUDGMENT/ORDER signed by P.O.
on
21.04.2018
JUDGMENT/ORDER uploaded on 23.04.2018
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