Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order in N/M No. 357/2020 in
S.C.Suit No. 2684/2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 357 OF 2020
(CNR No. MHCC01-000818-2020)
IN
SHORT CAUSE SUIT NO. 2684 OF 2018
Mr. Raj Asharam Pal. ....Plaintifff.
Versus
Mr. Rajkumar Asharam Pal and Others ....Defendants.
Adv.Mr.Rajnish A.Dubey for Plaintiff.
None present for Defendants.
CORAM : HIS HONOUR JUDGE SHRI.
VIDYADHAR B. KAKATKAR
C.R.NO.9.
DATE : 05th MARCH, 2022.
Appearence : Adv. Rajnish A. Dubey for Plaintiff.
None for the defendants.
ORDER
The Notice of Motion is taken out for setting aside the
order dated 04/03/2019 and for condonation of delay of 295 days
caused in filing the written statement on record.
2. It is the case of the defendant no.1 that the suit is filed for
challenging the legality of the order passed by the defendants on the
grounds mentioned in the suit. The wife of the Defendant No.1 was not
well from the month of January 2019. She was advised to avoid long
distance travel and exertion. Therefore, the Defendant No.1 could not
travel to the office of his Advocate for giving instructions and prepare
the written statement. The Defendant No.1 could not attend the Court
also. The Defendant No.1 was required to take care of his wife. He has
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2 Order in N/M No. 357/2020 in
S.C.Suit No. 2684/2018
further stated that he spent huge amount for the treatment of his wife.
Therefore, he could not pay the fees of the Advocate. He has further
stated that his Advocate also could not take instructions from him as he
was facing pregnancy related issues of his wife. In all above
circumstances, there is delay of 295 days caused in filing the written
statement. The ‘ex-parte’ order came to be passed against him on 04th
March 2019. He has prayed for setting aside the same.
3. Plaintiff has contested the Notice of Motion on the ground
that, it is an abuse of process of law. Defendant No.1 was having
knowledge of all the dates fixed and still he preferred to remain absent
in the Court. There is no sufficient cause given by the Defendant No.1
for condonation of delay and setting aside the ex-parte order. The
Defendant No. 1 was served with the Writ of Summons on 06/12/2018
and as he failed to appear, ex-parte order was passed against him. The
reasons given by the Defendant No.1 is concocted. It is stated that there
is delay of 335 days in filing the written statement. For all these
reasons, the Plaintiff has prayed for dismissal of the Notice of Motion.
4. I have heard Ld. Advocate for the Plaintiff. None present
for the Defendant No. 1. Hence the matter is listed for orders by closing
the argument of Defendant No.1.
5. Defendant No. 1 has basically given two reasons for his
absence before the Court. The first one is that his wife was not feeling
well and he was engaged in taking care of his wife. Secondly his
Advocate was also facing certain issues regarding the pregnancy of his
wife. Therefore, they could not attend the Court on the fixed date. The
Defendant No. 1 has not filed any document on record to show that his
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3 Order in N/M No. 357/2020 in
S.C.Suit No. 2684/2018
wife was ill and it prevented the Defendant No.1 from appearing before
the Court.
6. Defendant No.1 has supported his Notice and Motion by
affidavit. Other difficulty is that of his Advocate. A litigant can not be
allowed to suffer for the fault of his advocate. Therefore the defendant
no. 1 deserves opportunity to defend the suit. It is proper to adjudicate
the matter by giving opportunity to both the parties of presenting their
side. Considering this aspect, it appears that the delay caused can be
compensated in the terms of money.
7. Defendant no.1 has appeared su-motu and willing to
contest the suit. In the circumstances, I am inclined to allow the
application with the following order.
O R D E R
1. The Notice of Motion No. 357 of 2000 is
allowed subject to payment of costs of Rs. 5000/-
to be paid by Defendant No.1 to Plaintiff within
30 days from the date of this order.
2. The ‘ex-parte’ order passed against
Defendant No. 1 on 04/03/2019 is set aside on
payment of cost by Defendant No.1 as aforesaid
and the Written Statement of defendant No.1
which is already placed on record be accepted.
3. Defendant No.1 shall bear his own costs
of this Notice of Motion.
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4 Order in N/M No. 357/2020 in
S.C.Suit No. 2684/2018
4. Notice of Motion No.357 of 2020 is
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
Date: 05.03.2022 City Civil Court, Gr.Mumbai.
Direct Typed on: 05.03.2022
Checked on : 11.03.2022
Signed on : 19.03.2022
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5 Order in N/M No. 357/2020 in
S.C.Suit No. 2684/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF CLERK
19.03.2022 at 11.30 a.m. MR.PRAVIN V. KHARCHE
Name of the Judge (with Court Room
No.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of Judgment/
Order
05.03.2022
Judgment/Order signed by P.O. on 15.03.2022
Judgment/Order uploaded on 19.03.2022
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