Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.364/2019
in S.C. Suit No.2597/2016
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.364 of 2019
(CNR NO. MH CC010009342019)
In
S.C. SUIT No.2597 OF 2016
Deepak Anaji Dhumale ….Plaintiff
V/s.
Mrs. Punam Shailendra Kambli & Ors. ....Defendants
Appearance:
Mr. M. H. Belosay, Advocate for the plaintiff.
Mr. H. P. Ghadigaonkar, Advocate for the defendants
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 13 th January, 2020.
ORDER
1. By this notice of motion, defendant Nos. 1 and 2 have
prayed for condonation of delay of 605 days in filing written statement
on record.
2. In support of notice of motion, defendants have filed
affidavit and averred that the writ of summons was received by
defendant No.2 in the month of April 2017. They were under bonafide
impression that since the earlier suit was dismissed, therefore the service
of present suit is on the same ground and therefore proper steps were not
taken in the matter.
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2 Notice of Motion No.364/2019
in S.C. Suit No.2597/2016
3. It is further averred that the defendant No.1 is unemployed
and housewife, her husband is Auto Rickshaw Driver and suffering from
various ailments. Therefore, they could not make any financial
arrangement to approach an Advocate for filing written statement on
record. The defendant No.2 is also housewife. Her husband is not
earning therefore she is required to look after the household expenses
and therefore she could not approach the lawyer for tendering written
statement on record. It is further averred that the delay in filing the
present notice of motion is not intentional and in the interest of justice, it
needs to be allowed for giving opportunity of defence to the defendants.
For all these reasons, it is prayed that the notice of motion may kindly be
made absolute.
4. In affidavit in reply, the plaintiff has denied all the
contentions raised by the defendants. It is averred that the same
Advocate who was appearing in the earlier suit on behalf of defendants is
also appearing in the present suit as he has contested the matter at great
length in the Court. The defendant Nos. 1 and 2 have filed Civil Revision
Application No.678/2012 and forced the plaintiff to defend the said
proceeding and then to file Testamentary Petition No.1474 of 2013 for
probate. According to plaintiff, the defendants deliberately failed to
attend present matter when they were receiving monthly rent of
Rs.16,000/ and they had received Rs.10,00,000/ from the Builder as
set out in the plaint. Therefore, the contentions of defendants that they
were unable to engage the service of Advocate does not have any
substance. For all these reasons, it is prayed that the notice of motion
may kindly be dismissed.
5. Heard both the learned Advocates at length. Learned
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3 Notice of Motion No.364/2019
in S.C. Suit No.2597/2016
Advocate for plaintiff has cited the Judgment in the matter of State of
West Bengal V/s. Administrator, Howrah Municipality & Ors. dated
14th December 1971 in 1972 AIR 749.
It has been observed by Hon'ble Court that :
“ It is not possible to lay down precisely as to what facts or matters
would constitute 'sufficient cause' under Section5 of the Limitation
Act. But those words should be liberally construed so as to advance
substantial justice when no negligence or any inaction or want of
bona fides is imputable to a party; that is, the delay in filing an
appeal should not have been for reasons which indicate the party's
negligence in not taking necessary steps which he could have or
should have taken. What would be such necessary steps will again
depend upon the circumstances of a particular case.”
In that case, the Judgment of the Hon'le High Court for
dismissing application filed by the appellant under Section 5 of the
Limitation Act was challenged. Thus, the delay in preferring an appeal
was condoned. In the present case, the defendant Nos. 1 and 2 have
stated that they could not engage an Advocate due to their financial
condition and ailment of husband of defendant No.1, they were unable
to tender written statement on record. In my opinion, it is “Sufficient
Cause” and thus the observations are applicable to the present set of
facts.
6. In affidavitinrejoinder, it is further averred by defendant
Nos. 1 and 2 that they were duly served on 25.01.2017 and the affidavit
of Bailiff is filed in the Testamentary Petition has made the remark that
the address of defendant No.1 at Worli is already demolished and
therefore he could not serve the citation. The citation was served on
defendant Nos. 1 and 2 for publication. Therefore, the record shows that
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4 Notice of Motion No.364/2019
in S.C. Suit No.2597/2016
by making misrepresentation, plaintiff has obtained the Letter of
Administration. According to defendants, no prejudice will cause to the
plaintiff, if their written statement is taken on record.
7. Considering the contentions of both parties, it has come on
record that the defendants failed to file their written statement within
the prescribed period of limitation. Reasons stated out by them in the
present notice of motion are sufficient, in order to condone delay in filing
their written statement. In my opinion, there is no negligence or in
action on the part of defendants. Therefore, in order to grant sufficient
opportunity of defence, delay is required to be condoned. Further more,
no irreparable loss or harm will caused to plaintiff, if the written
statement of defendant Nos. 1 and 2 is taken on record. On the other
hand, if written statement of defendant Nos. 1 and 2 his taken on record,
it will be helpful in deciding controversial issues in the matter. However,
for the delay caused on behalf of defendants, the plaintiff needs to be
compensated in terms of money. Resultantly, I pass the following order.
ORDER
1. Notice of Motion No. 364 of 2019 is made absolute in terms of
prayer clause (a) subject to cost of Rs. 8,000/ (Rs. Eight
Thousand Only) to be paid to plaintiff on or before next date.
2. Payment of costs is condition precedent and failure to make
compliance, the notice of motion stands dismissed automatically.
3. After payment of costs, written statement of defendant Nos. 1 and
2 be taken on record.
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5 Notice of Motion No.364/2019
in S.C. Suit No.2597/2016
4. Notice of Motion No.364 of 2019 stands disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date :13/01/2020
Dictated on : 13.01.2020
Transcribed on : 13.01.2020
Signed on : 15.01.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
15.01.2020 04.00 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 13.01.2020
Order signed by P.O. on 15.01.2020
Order uploaded on 15.01.2020
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6 Notice of Motion No.364/2019
in S.C. Suit No.2597/2016
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