Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 146-20 in
in Suit no.1177/2018
MHCC010003662020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 146 OF 2020
CNR NO.MHCC010003662020
IN
SUIT NO. 1177 OF 2018
Shivaji Shamu Wagharalkar ….Plaintiff
V/s
Navin Asha Premises CHS Ltd., ...Applicant
( original defendant)
CORAM : HIS HONOUR JUDGE
SHRI KISHORE M. JAISWAL
(COURT ROOM NO.01)
DATE : 27th DAY OF AUGUST, 2021
Adv. Minal Lodaya i/b S.K Legal Ass. for plff is present.
Adv. Ranjekar for the /Applicant /defendant
ORAL ORDER
This notice of motion is taken out by the defendant
Navin Asha Premises CHS Ltd., for condoning the delay in filing
written statement with permission to file the written statement on
record. This notice of motion is supported by an affidavit being
executed by the Chairman of defendant's society Susanta Kumar
Maity. Plaintiff has strongly opposed the notice of motion by filing
reply. I have heard learned advocate Shri Ranjekar for the
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defendants and learned advocate Minal Lodaya for the plaintiff.
2. At the very outset of this notice of motion, it is pertinent
to note that the main suit is for declaration wherein the plaintiff is
intending to seek declaration about the ownership right over the suit
premises in the society. The defendant herein is a Cooperative
housing society. So also in the present case the notice of motion was
taken out by the plaintiff which was dismissed by my learned
predecessor on 15/7/2019. Thereafter the matter was placed for
filing of written statement and on 27/11/2019 my learned
predecessor has passed an order stating that the case to proceed
without written statement. Immediately there after on 18/12/2019
the defendant has appeared and filed this notice of motion permitting
them to filed written statement on record by condoning the delay.
3. In the affidavit in support of notice of motion, it is
submitted that on 10th April, 2018 the defendant's society has
received letter from the advocate for plaintiff informing about the
present suit. It is a matter of record that the defendant has contested
the notice of motion by filing its reply and it was decided on merits. It
is pertinent to note here that the contentions of para no.5 of the
affidavit in support shows that the defendant's society has also filed a
dispute under section 91 of the Cooperative Societies Act before the
Cooperative Court for declaration that the plaintiff may be declared
as trespasser and also for the possession. Thus bone of contents on
part of the society is that the plaintiff is rank tresspasser and if no
opportunity to defend the suit is given then it will cause grave
injustice to them. It is also submitted that society has to legal
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guidance about the present suit and there was discussion whether
the society should contest the suit or not as monetary innvolvement
is there.
4. Thus if the contents of para no.2 to 10 of the affidavit in
support are looked into then in my opinion satisfactory reasons have
been explained for not filing the written statement within the
statutory period.
5. While opposing the notice of motion learned advocate for
the plaintiff vehemently argued before me that there is no
explanation as each and every day delay as required under the law.
But one fact cannot be lost sight of that notice of motion is dismissed
on merits.
6. Be that, as it may, considering nature of the suit and as
the party defendant is Cooperative society and further that the
defendant's society is ready with the written statement which can
very well be placed on record today itself, in my considered opinion,
one opportunity needs to be granted to defendant's society to contest
the suit on merits by condoning the delay in filing written statement.
Even otherwise if no such permission is granted and when already
the dispute is pending before the Cooperative Court then in that
eventuality the present trial would be as if that no fair opportunity is
given to the defendant. Therefore for fair trial and proper
adjudication of the present case, I am of the opinion that the delay in
filing written statement can very well be condoned in the interest of
justice with further direction that the defendant society should file
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the written statement on record today itself by serving the copy of it
to the plaintiff. Hence in the interest of justice, I pass the following
order.
ORDER
Notice of motion no. 146/20 is allowed and made
absolute in terms of prayer clause (a) and (b) with further
direction that today itself the defendant to file written
statement on record and also to supply the copy of same to
the advocate for the plaintiff.
Notice of motion is disposed off accordingly.
(Kishore M. Jaiswal)
Judge, City Civil & Sessions
Date:.27.08.2021 Court, Gr.Mumbai (C.R.No.14)
Dictated on : 27.08.2021
Transcribed on : 28.08.2021
Signed on : 30.08.2021
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in Suit no.1177/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 30.08.2021 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Kishore M. Jaiswal.
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 27.08.2021
JUDGMENT/ORDER signed by P.O. on 30.08.2021
JUDGEMENT/ORDER uploaded on 30.08.2021
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