Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 335/20(Suit 983/14)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 335/2020
(CNR No.MHCC01-000876-2020)
IN
S.C. SUIT NO. 983/2014
Mrs. Jyoti Satish Niphadkar ..Plaintif
V/s.
1. Mrs. Hemalata Narayan Rane
2. Dipak @ Jayshsingh Vasant Rane
2(a) Smt. Jayshree Jayshsingh Rane
2(b) Nandan Jayshing Rane
2(c) Prachi Jayshingh Rane
2(d) Pallavi Jayshingh Rane
3. Mrs. Manasi Pratap Rane
4. Jayesh Pratap Rane ..Defendants
Appearance:-
Adv. Mr. Redekar for plaintif.
Adv. Mr. R.D. Thorat for defendant no.1.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 3.2.2020.
ORAL ORDER
1. Perused Notice of Motion supported by an afdavit
of Mrs. Hemalata Rane (defendant no.1) and say fled on the
Motion itself by Ld. Counsel for the plaintif.
2. I have heard Ld. Counsels for the defendant no.1
and the plaintif on the Motion.
3. It is submitted by Ld. Counsel for the defendant
no.1 that, she has taken out the Motion for setting aside the
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order passed by this court on 10.7.2014 by which the court
had proceeded without WS of the defendant no.1 on record. Ld
Counsel for the defendant no.1 further submitted that, there
has been delay of about 1900 days for taking out the Motion
for setting aside the above said order and it needs to be
condoned in the interest of justice.
4. Ld. Counsel for the plaintif submitted that, she is
relying on the afdavit of defendant no.1 fled in support of
the Motion. It is submitted that, the plaintif has fled the Suit
for seeking declaration of her 1/4th share in the suit property
and for partition of the suit properties. Defendant no.1 was
served with writ of suit summons on 3.7.2014 as per bailiffs
report dated 5.7.2014. It is submitted that, the defendant no.1
could not attend the court after service of summons because
she was consenting party to the plaintiffs claim in the suit and
therefore, she had never attended the court nor engaged
advocate to represent her case before the court.
5. It is submitted that, in December 2018, the
defendant no.1 was sufering from fever due to old age and
was taking bed-rest. In the meanwhile, defendant no.3 had
met defendant no.1 and informed that, the defendant no.2
was partly contesting the suit in relation to the suit property
no.1 on the ground that, the said suit property i.e. a fat at
Kurla, was jointly purchased by him and her father, although
the share certifcate stood in the name of the father. Realizing
the consequences of the above false claim taken out by the
defendant no.2 she had decided to engage an advocate in this
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matter in February 2019. In March 2019, advocate appeared
on her behalf before the court, and on his advice and
instructions, it was found necessary to prepare WS and for
said purpose it was necessary to take out a Motion before this
court for setting aside the ‘no WSf order dated 10.7.2014.
Accordingly, the above said application is fled. The delay in
fling the WS is not deliberate or intentional but has occurred
due to the above mentioned facts and circumstances. Hence,
the Motion deserves to be allowed.
6. On the contrary, Ld. Counsel for the plaintif has
relied on the say submitted on the Motion itself and contended
that, the contentions made by defendant no.1 in the Motion
are not true and correct and not supported by any documents
on record. The delay on the part of defendant no.1 is
deliberate and intentional and same has been fled after lapse
of fve years. The delay is not properly explained. The delay in
taking out the present Motion is huge delay and cannot be
condoned on the basis of facts and circumstances stated in
the Motion. Hence, the notice of motion deserves to be
dismissed with costs.
7. Perusal of the notice of motion and supporting
afdavit as well as say fled on the Motion make it clear that,
initially, the defendant no.1 was consenting party to the suit
but due to subsequent developments, she has decided to
participate in the suit proceedings by submitting WS.
Admittedly, the suit fled by the plaintif is for partition of the
suit property and it is a settled legal position that, in partition
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suit, both plaintif and defendant are claiming shares in the
property and want reliefs from the court, therefore, all are
situated in the role of plaintif.
8. Under the above circumstances, though there is
substantial delay on the part of defendant no.1 in appearing
before the court and fling WS, considering the nature of suit
i.e. partition and possession of the suit property, it will be just
and proper to condone the delay and give an opportunity to
the defendant no.1 to put up her case before the court. It is
true that, Issues in the suit have been framed by this court
recently on 17.1.2019 but, trial is yet to commence. Under
the above circumstance, no prejudice will be caused to the
plaintif if the Motion is allowed. However, considering the
aspect of delay in the matter, it will be just and proper to
impose certain costs on the defendant no.1. Hence, I proceed
to pass following order :-
ORDER
1. Notice of Motion No.335/2020 is hereby allowed
and made absolute subject to defendant no. 1
paying cost of Rs.1,000/- to the plaintif within
four weeks from today.
2. If the above direction is complied with by the
defendant no.1, then the order passed by this
court on 10.07.2014 to proceed without WS of
the defendant no. 1 shall stand set aside and WS
of the defendant no.1, if any, shall be taken on
record.
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Notice of Motion is disposed of accordingly.
(V.V. Vidwans)
Date: 3.2.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 3.2.2020
Transcribed on : 4.2.2020
Draft given on 4.2.2020
Signed by HHJ on : 5.2.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/
ORDER.
UPLOADED ON : 6.2.2020
TIME: 10.42 am (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 3.2.2020
Judgment/ order signed by P.O on 5.2.2020
Judgment/ order uploaded on 6.2.2020
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