Order 2

Order Details: Order below exhibit
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
ORDER BELOW EX.NO.4
IN
SUIT NO.2636 OF 2018
Mrs.Mridula Vinay Rathi and others ..Plaintiffs
V/s
Mr.Ram Gopal Gupta and others ..Defendants
Plaintiff no.3 present
Adv. Ms.Neena Shetty for defendants with adv.Sarkhot
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 09/12/2019
ORAL ORDER
1. By this application, the plaintiffs have taken objection
for tendering the written statement of the defendants
on record after the expiry of 30 days or even 90 days.
2. The plaintiffs contended that the defendants have
filed written statement beyond 90 days and have not
sought condonation of delay and hence this Court to
reject the filing of the written statement of the
defendants.
3. Defendant no.2 has filed reply to the said objection
of the plaintiffs. It is the contention of the
defendants that objection is mischievous and filed
with intend to deprive the defendants from bonafide
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rights to defend the suit. It is the contention of the
defendants that copy of plaint and notice of motion
was served upon defendant no.2 on 30/01/2018 at
5.00 p.m. in the Hon'ble High Court at the time of
hearing Civil Application No.2054 of 2017.
Defendant no.2 was present on 31/01/2018 but his
presence was not recorded by the Court and the
plaintiffs were directed to remove the office objection
at first instance. The plaintiffs have not removed the
office objection. The matter was adjourned on
various dates and it was shown for compliance on
28/08/2018. The application u/s.9A of Civil
Procedure Code was taken out by the defendants
which was affirmed on 26/06/2018. He had
affirmed reply to the notice of motion on
26/06/2018, but the same could not be filed as the
board was discharged from time to time. The
plaintiffs failed to remove the office objection and
failed to inform that the suit is registered. The
defendants do not have knowledge of registration of
the suit. On 06/10/2018, the matter was shown on
board on lodging number and was adjourned to
29/10/2018. It was not shown for written
statement. When the matter was shown under the
caption of written statement, the defendants filed the
written statement.
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4. The stand of the plaintiffs is that suit was filed on
15/01/2018 and the copy of the notice of motion
alongwith plaint and annextures were supplied to the
defendants and defendants appeared in the matter
on 31/01/2018 and inspite of that defendants failed
to file the written statement within 30 days from the
service. On perusal of the record it appears that on
31/01/2018 the plaintiff was directed to remove the
office objection. On 28/06/2018, the suit was
dismissed for want of prosecution. On 14/08/2018,
the suit was again restored. Till 06/10/2018, the
suit was not registered. It was on stamp number.
From the record, nowhere it reflects that summons
was issued to defendant no.2. Be that as it may,
throughout this period the suit was for removal of
the office objection by the plaintiff and once it came
to be dismissed for want of prosecution. In that
eventuality, the date of service of the notice of
motion and plaint to defendant no.2, on 30/01/2018
cannot be taken as the date for calculating the period
of limitation for filing written statement. After
registration of the suit, twice the matter was
adjourned for hearing on notice of motion. On
30/10/2018, the matter was adjourned for filing the
reply and written statement by the defendants. At
that time, the plaintiff no.3 was present, he did not
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object and point out for proceeding without written
statement in the matter as the period of 30 days or
90 days has expired. Now, this application is nothing
but abuse of process of law. The Written statement
was filed on 22/11/2018, the date on which the
matter was adjourned for filing written statement.
Thus, when the suit was not registered and the office
objection was not removed, the defendants appeared
at the notice of the plaintiffs for urgent matter i.e. in
the notice of motion that cannot be said to be the
period of service of summons. The order 8 rule 1 of
the Civil Procedure Code contemplates that 30 days
has to be counted from the date of service of
summons. There is nothing to show that summons
was served to the defendants. The application,
therefore needs no consideration. Hence, in view of
the above following order is passed:
ORDER
1. Application(EX.4) stands rejected.
2. Costs in the cause.
09/12/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 09/12/2019
Transcribed on : 11/12/2019
Signed on : 30/12/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
03/01/2020 at 3.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
09/12/2019
Judgment and order signed by P.O. 03/01/2020
Judgment/order uploaded on 03/01/2020
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