Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion
No. 149 of 2020 1
MHCC010003902020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 149 OF 2020.
IN
Short Cause Suit No.1062 of 2013.
1. Kutchi Sarvodaya Nagar.
2. Shri Chandrakant Hansraj Pasad.
3. Shri Jayantilal Shyamji Haria.
4. Shri Tarachand Morarji Gala. … Applicants
(Deft No.1 to 4)
In the matter between
Pravin Talakshi Chheda. …Plaintiff
V/s.
1. Kutchi Sarvodaya Nagar and Ors. ...Defendants
Appearance:
Adv. Ankit Rajput i/b Manoj Bhatt for Plaintiff.
Adv.Gauri Joglekar i/b Meraki Legal for Defendant Nos. 1 to 4.
Adv. Sweta Moshe i/b Sweta Mehta for Deft No.6(a).
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR (C.R.No.59)
DATE : 02nd AUGUST, 2022.
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No. 149 of 2020 2
ORDER
Defendant Nos. 1 to 4 have taken out this Notice of Motion
to set aside exparte order dated 13.03.2014 and to condone the delay
of 2447 days in filing written statement.
2 Heard Ld. Adv. for defendant Nos.1 to 4 and Ld. Adv. for
plaintiff. Perused affidavit in support of Notice of Motion and affidavit
in reply.
3. Ld. Adv. for defendant Nos.1 to 4 submits that the present
trustees of defendant No.1 are newly elected in 2019. The earlier
trustees and managing committee of defendant No.1 trust were not very
well educated and did not have knowledge of law. Therefore, defendant
No.1 to 4 were not represented in the suit and the suit proceeded ex
parte by order dated 13.03.2014. The earlier advocate did not return
the documents. Therefore, considerable time was required to obtain
certified copies. The present advocate was under bonafide belief that
written statement has been filed. However, after obtaining certified
copies, it was revealed that written statement was not on record.
Defendants have good defence and if they are not given chance to
plead, their valuable right to defend will be curtailed and it will cause
grave loss and prejudice to the defendants. The delay is not deliberate
hence, she prayed that the delay be condoned and written statement of
defendant Nos. 1 to 4 be taken on record.
4. Ld. Adv. for the plaintiff submits that Notice of Motion is
filed without any substance. There is substantial delay without any
reasonable and sufficient reasons. The delay is of around 8 years and
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No. 149 of 2020 3
without satisfactory reasons it cannot be condoned.
5. Perused record of the suit. The suit is lodged on
26.02.2013. Vide order dated 13.03.2014, the Court ordered to proceed
exparte against defendants. Written Statements filed by defendant
Nos.5 and 6 are taken on record on 20.11.2015 and after framing issues
on 20.07.2018 the matter was pending for taking steps to bring on
record LR's of deceased defendant No.6. The Chamber Summons No.
570 of 2019 for that purpose is allowed on 20.01.2020. On the same
day, the present Notice of Motion is tendered by defendant Nos.1 to 4.
Though there is huge delay of 2447 days in filing written statement by
defendant Nos.1 to 4, the record shows that the entire delay in the suit
cannot be attributed to defendant Nos. 1 to 4, alone.
6. Ld. adv. for defendant Nos.1 to 4 placed reliance upon the
judgments in i) Salem Advocates Bar Association, Tamil Nadu V/s.
Union of India, Writ Petition No. (Civil) 496 of 2002 (S.C.), ii) Desh
Raj V/s. Balkishan (D) Through Proposed LR Ms. Rohini, Civil
Appeal No. 433 of 2020 (S.C.) and iii) Kailas V/s Nanhku & Ors.,
Appeal (Civil) 7000 of 2004 (S.C.) to submit that the provision in
Order VIII Rule 1 of the Code of Civil Procedure (In short 'CPC') is
directory and not mandatory. Therefore, time to file written statement
can be extended beyond the period provided in Order VIII Rule 1 of
CPC. On the other hand, Ld. Adv. for the plaintiff placed reliance upon
the judgment of the Hon'ble Delhi High Court in M/s. Omaxe Ltd &
Ors V/s. M/s. Roma International Pvt Ltd, CM (M) 729/2012 with
CM 10873/2012 and 10874/2012 of Delhi High Court to submit that
where there is irresponsible, careless and casual approach of the
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No. 149 of 2020 4
defendants in filing written statement, delay cannot be condoned.
7. I have gone through all the above authorities. It is by now
settled proposition of law that the period of limitation prescribed under
Order VIII Rule 1 of the CPC for filing of written statement is directory
and court is empowered to extend the said period. However, the present
issue is not covered under Order VIII Rule 1 of CPC as period of
limitation prescribed for filing written statement is already over long
back.
8. The prayer is to condone the delay in filing written
statement, under Section 5 of the Limitation Act. Therefore, defendants
will have to make out the case that there is sufficient cause to condone
the delay. The reasons for delay given by defendant Nos. 1 to 4 are that
new trustees are elected in 2019 and earlier trustees did not have
adequate knowledge of law. Another reason given for delay is that
earlier advocate did not hand over the documents and considerable
time was required to obtain certified copies and thereafter the present
advocate came to know that written statement of the defendants is not
on record. In view of the above reasons, the delay in filing written
statement does not appear to be deliberate or intentional.
9. In view of the stage arrived in the suit, for the reason given
to explain the delay, defendants No.1 to 4 can be given opportunity to
putforth their defence, though there is considerable delay.
Proportionate costs can be imposed upon them to meet the ends of
justice. However, it would not be proper to deny the opportunity to the
defendants to file the written statement on the ground of delay alone.
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In these circumstances, the Notice of Motion deserves to be allowed
subject to costs. In the result, following order is passed:
ORDER
1. Notice of Motion No. 149 of 2020 is allowed subject to costs of
Rs.7,000/ to be paid to the plaintiff.
2. Defendants Nos. 1 to 4 shall comply the order of costs within
four weeks from the date of this order and immediately after
compliance shall tender their written statement on record.
3. Notice of Motion No.149 of 2020 disposed of accordingly.
(S.B. Pawar)
Judge,
Dated: 02/08/2022 City Civil and Sessions Court,
Greater Bombay (CR 59)
Declared on : 02.08.2022
Dictated on : 02.08.2022
Transcribed on : 02.08.2022
Checked & Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.08.2022 at 11.55 a.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 02.08.2022
Order signed by P.O. on 02.08.2022
order uploaded on 08.07.2022
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