Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.315/2019 in Suit No.453/2018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.315 OF 2019
(MHCC010007722019)
IN
S.C.SUIT NO. 453 OF 2018
(MHCC010012512018)
Siddhgiri Realty Pvt. Ltd. ]
Shop No.24, 1st floor, 110, Kaka Kauva ]
Building, 3rd Bhoiwada, ]
Mumbai 400 004. ]..Applicant.
IN THE MATTER BETWEEN:
1 Rajesh M. Parekh, Adult of Mumbai, ]
Indian Inhabitant, residing at 15th floor, ]
Karmashetra, Flank Road, Sion (East), ]
Mumbai 400 037. ]
2 Darshana M. Mehta, Adult of Mumbai, ]
Indian Inhabitant, residing at Kanhan, ]
8th floor, N.S. Road No.5, Plot No.7, ]
Vallabh Nagar Society, J.V.P.D. Scheme, ]
Vile Parle (West), Mumbai 400 056. ]..Plaintiff.
Versus
1 Jayesh M. Parekh Adult of Mumbai, ]
Indian Inhabitant, Occupation: Unknown ]
having address at 3rd floor, Krishna Kunj, ]
Plot No.74, R.A. Kidwai Road, Matunga, ]
Mumbai 400 002. ]
2 Siddhgiri Realty Pvt. Ltd. Having ]
registered office at Shop No.24, 1st floor, ]
110, Kaka Kauva Building, 3rd Bhoiwada, ]
Mumbai 400 004. ]..Defendants.
Advocate Ms. Bangera for defendant no.2.
Advocate Mr. Udayan Jain for the plaintiffs.
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2 N/M No.315/2019 in Suit No.453/2018
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 29th JANUARY, 2019
ORAL ORDER
This Notice of Motion has been taken out by defendant
no.2 for dismissal of suit for nonservice of Writ of Summons as
provided under rule 55 of The Bombay City Civil Court Rules 1948. In
support of notice of motion, defendant no.2 has filed his affidavit.
2 The plaintiff has filed reply and resisted this notice of
motion. It is contended that this notice of motion is misconceived and
not maintainable. Defendant no.2 has approached the Court with
unclean hands and also with unclean intentions to abuse the process of
law and process of this Court.
3 It is further contended that there is no cause of action made
out by defendant no.2 against the plaintiff. Defendant no.2 appeared
in the Court and filed Vakalatnama. Defendant no.2 has filed reply to
the notice of motion of the plaintiff. Hence prayed for dismissal of
notice of motion.
4 Heard the learned advocate for defendant no.2 and learned
advocate for the plaintiff.
5 The learned advocate for the plaintiff has placed his
reliance in Meena Ramesh Lulla and others V/s. Shri Omprakash A.
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3 N/M No.315/2019 in Suit No.453/2018
Alreja and others reported in Appeal No.616/2011. It is observed in
paragraph no.8 as:
“The purpose and object of the service of the writ
of summons must be first understood. It is only to
give notice to the defendants to the plaintiffs'
claim. It will enable the defendant who otherwise
has no such notice to appear and answer the
plaintiffs' claim. This is, therefore, not an
ornamental or a ritualistic requirement. The
exercise has not to be undertaken in each and
every case without application of mind. When the
object of notifying the defendants of the plaintiffs'
claim is otherwise served, the service of the writ
of summons would become a redundant formality
taking up needless judicial time in passing
directions for such service and causing avoidable
expenses to the plaintiffs in serving summons. It
is, therefore, that when defendants appear upon
notice of the plaintiffs to defend an application for
adinterim or interim relief either personally or
through their advocate they generally waive
service. Once service is waived the service is not
to be effected. In fact, in this case service was
waived when the adinterim application was
considered and the Notice of Motion was made
returnable by the order passed on 22nd November
2000 (though the order mentions the expression
“waive notice” it is essentially the waiver of the
service of the writ of summons.)”
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4 N/M No.315/2019 in Suit No.453/2018
In the present case in hands, defendant no.2 has appeared in the suit
and further even filed reply to the notice of motion of the plaintiff.
Hence, with respects the principle held in the authority is applicable to
the present set of facts.
6 Thus, in the facts and circumstances, in view of above cited
authority, this notice of motion is not maintainable and liable to be
dismissed. Defendant no.2 has right to file written statement on next
date, as there is no service of writ of summons to defendant no.2.
Considering appearance of defendant no.2 before the Court, it is just
and proper to grant last chance to defendant no.2 to file written
statement, with this directions to defendant no.2 in respect of filing
written statement, notice of motion is to be dismissed. With this, I
proceed to pass the following order:
ORDER
Notice of Motion No.315 of 2019 is hereby dismissed with
costs.
2 Notice of Motion No.315 of 2019 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 29/01/2019. City Civil Court,
Gr. Bombay.
Dictated on : 29/01/2019
Transcribed on : 29/01/2019
Signed on : 30/01/2019
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5 N/M No.315/2019 in Suit No.453/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
31/01/2019 At 11.55 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
29.01.2019
Judgment/Order signed by P.O. on 30.01.2019
Judgment/Order uploaded on 31.01.2019
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