Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.393 OF 2020
(CNR NO.MHCC010009352020)
IN
S. C. SUIT NO.1392 OF 2018
Indian Octroi Corporation )..Plaintiff
V/s.
Mataprasad D Rai & others ).. Defendant
Appearances :
Ld. Adv. Jeetendra Ranawat for plaintiff.
Ld. Adv. B. A. Singh for defendant No.1, 3 & 4.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 02/11/2022.
ORDER
1. The Defendant No.1 to 4 have taken out this motion for
condonation of delay in filing written statement and setting aside order
dated 12/12/2018. It is the contention of the Defendant No.1 to 4 that
on 20/12/2019 when they had received the notice from the receiver of
Hon'ble High Court, they came to know about the filing of the suit and
that the writ of summons was returned to the court with remark as left
and on publication in newspaper, the matter was proceeded exparte
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against them. It is their contention that they were not aware of filing of
suit and publication in newspaper. It is further contended that the
remark left is obtained from the concerned postman by the plaintiff. It is
the contention that the delay caused is not intentional, as soon as they
received the noticed from the receiver of Hon'ble High Court, they
appeared and filed this motion. Lastly, prayed for allowing the motion.
2. The plaintiff resisted the contention by filing reply
contending that there is a huge delay of 20 months. The defendants
have not made out a case for condonation of delay. He denied that the
remark by the postman on the envelope of postal service of summons is
obtained by managing the postman. Lastly, the plaintiff submitted for
dismissal of motion with costs.
3. Heard the advocate of rival parties.
4. It reveals from the record that the plaintiff is seeking declaration
against the decree passed in Suit No.1479 of 1995 dated 25/11/2011.
The roznama shows that after paper publication the matter was
proceeded exparte against these defendants alongwith other
defendants. No writ of summons was issued through bailiff, therefore, I
am of the view that it is necessary to allow the defendants to contest the
matter on merit. The Defendant No.1 to 4 have appeared before this
court soon after the notice of receiver was served, hence, I am of the
view, that their absence in the proceeding is not intentional. They have
tendered their written statement alongwith this motion. Thus, delay
deserves to be condoned irrespective of miscalculation of days.
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Consequently, to adjudicate the matter on merit, the defendants deserve
to be allowed to file the written statement on record. In the result, I
proceed to pass the following order :
ORDER
1. Notice of Motion No.393 of 2020 in Suit No.1392/2018,
is hereby allowed.
2. Delay stands condoned, order dated 12/12/2018, is
hereby set aside.
3. Written Statement is already tendered on record, it be
exhibited.
4. Notice of Motion stands disposed of accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 02/11/2022 C.R. No.03, Gr. Mumbai
Dictated on : 02/11/2022
Typed on : 02/11/2022
Signed on :
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“Certified to be true and correct copy of the original signed order”.
05/11/2022
at about 12.00 noon
(Ms. Vidya Abhijit Mande)
Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 02/11/2022
Order signed by Hon'ble Judge on : 03/11/2022
Order uploaded on : 05/11/2022
at about 12.00 noon
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