Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM-215-2020 in SU-1566-2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.215 OF 2020
(CNR NO.MHCC01-000537-2020)
IN
SC SUIT NO.1566 OF 2019.
(CNR NO.MHCC01-001829-2019)
Mr. Ravindra Karbhari Kardak and Ors. }...PLAINTIFFS.
Versus
Mr. Vinod Karbhari Kardak and Ors. }...DEFENDANTS.
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Nobody appeared for the plaintiffs.
Shri.Pethe, learned advocate for defendant Nos.1 and 2.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 20/04/2022)
1. By filing this Notice of Motion, defendant No.1 has prayed
to condone the delay caused in filing Written Statement.
2. Read the affidavit filed in support of the Notice of Motion
and affidavit in reply filed by the plaintiff. Heard learned Shri.Pethe
advocate for the defendant No.1. Nobody appeared for the plaintiffs to
advance argument hence, matter is taken up for consideration on
merits. Perused the entire record.
3. Defendant No.1 has contended in the affidavit filed in support of
Notice of Motion that writ of summons is served on him on 06/07/2019
and he had accordingly appeared before the court on 15/07/2019. It is
contended that when the advocate for defendant No.1 had appeared in
the court on 22/10/2019, he was directed by the court to take out
Notice of Motion for condonation of delay caused in filing Written
Statement. It is a matter of record that Notice of Motion is taken out on
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07/01/2020. It appears that, there is a delay of more than 150 days in
filing Written Statement by defendant No.1.
4. In his reply filed to the Notice of Motion, learned advocate
for the plaintiffs has placed reliance on the Law laid down by Hon’ble
Apex Court in a case of
Atcom Technologies Limited Vs. Y. A.
Chunawala And Co. And Ors. reported in
LAWS(SC)-2018-5-23 and
submitted that delay cannot be condoned mechanically unless sufficient
cause is shown. I have also gone through said authority wherein
Hon’ble Apex Court has laid down that the provisions of Order 8 Rule 1
of CPC are procedural in nature and, therefore, handmaid of justice yet
it would not mean that the defendant has a right to take as much time
as he wants in filing the written statement without giving convincing
and cogent reasons for the delay. In the matter before Hon’ble Apex
Court, there was a delay of more than 15 years. In the matter in hands,
the delay is of around 150 days as mentioned above.
5. Defendant No.1 has mentioned in the affidavit that he has
put appearance on 15/07/2019, his advocate filed vakalatnama on
22/10/2019 and direction was given to take out Notice of Motion for
condonation of delay. Those statements are supported by the entries in
the roznama dated 15/07/2019 and 22/10/2019. Even though there is
a delay, it does not appear that the delay is deliberate and intentional. It
dos not appear that defendant No.1 has tried to get any disadvantage by
not filing the Written Statement within the stipulated period of 30/90
days as is prescribed under Order 8 Rule 1 of CPC. Suit is between the
family members as plaintiffs and defendant No.1 are relatives
interse.
Having regards to those aspects, this court is of the opinion that interest
of justice will be protected if the delay caused in filing Written
Statement is condoned by imposing certain costs on defendant No.1 so
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3 NM-215-2020 in SU-1566-2019
as to unable the defendant No.1 to contest the suit on merits. Thus, an
order.
O R D E R
Notice of Motion No.215 of 2020 is allowed subject to
cost of Rs.1,000/-(Rupees One Thousand only) in terms of its
prayer clauses(a) and (b).
Defendant No.1 shall either pay the amount of cost directly
to the plaintiff or shall deposit it in the court on or before next
date.
In case of failure of the defendant No.1 to pay/deposit the
cost as above, this Notice of Motion shall be deemed to have
been dismissed.
Date : 20/04/2022. (P.P.RAJVAIDYA)
Dictated on : 20/04/2022. Judge, C.R.No.62,
Checked on : 21/04/2022. City Civil Court,
Signed on : 21/04/2022. Mumbai.
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4 NM-215-2020 in SU-1566-2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
21/04/2022 at 2.00 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 20/04/2022
Order signed by P.O. on 21/04/2022
Order uploaded on 21/04/2022
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