Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 417/2020 in Suit No. 2585/2019. 1 Order.
MHCC010010482020
Presented on : 28-01-2020
Registered on : 28-01-2020
Decided on : 29-07-2024
Duration : 4 Y, 6 M, 1 D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 417 OF 2020
IN
SUIT NO. 2585 OF 2019
Mr. Shantaram Ganu Pate & Others. )...Plaintiffs
Versus
Mr. Harishchandra Ganu Pate. )...Defendant
Shri Kishore Paste, Advocate for the plaintiffs.
Shri Santosh Sitap, Advocate for the proposed defendant.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 29th JULY, 2024.
ORDER
. This notice of motion is moved by defendant to condone
delay of 63 days to file Written Statement.
2. The applicant/defendant contended that he served with
Writ of summons on 17.10.2019. Thereafter, there was conversation
with advocate to file the reply. His advocate asked him to collect same
information and thereafter prepared Written Statement and now ready
to file Written Statement. Hence, this Notice of Motion. In reply the
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N/m No. 417/2020 in Suit No. 2585/2019. 2 Order.
plaintiff contends that the notice of motion is filed after 70 days of
service of Writ of summons. The defendant was present in the court on
22.10.2019. He had filed reply to the notice of motion moved by the
plaintiff. Therefore, notice of motion taken out by the defendant is not
maintainable. Hence, prayed to reject the same.
3. It is specific submission of Ld. advocate for the defendant
that after service of writ of summons, the defendant out to have been
filed Written Statement within limitation. However, due to reasons set
out in the notice of motion there is delay. He also submits that there is
only three days delay after 90 days period prescribed for limitation is
expired. He also submits that the time fixed for Written Statement is not
mandatory. The court has discretionary power to allow the same to
decide the suit on merits. On the contrary it is submitted by Ld.
advocate for the plaintiff that the notice of motion is filed by the
defendant deliberately to prolong the suit. The plaintiff has filed suit for
partition. The original defendant has prepared false documents to
record suit in his name. Hence, prayed to reject the notice of motion.
4. The defendant does not deny the contentions of the
plaintiff that he was present in the matter on 22.10.2019 prior to filing
of Written Statement. The case of the defendant is that the delay is
caused due to time spent in conversation with his advocate. It is also
submitted by defendant that the original defendant is expired during
the hearing of notice of motion.
5. It is fact that the notice of motion was filed by the original
defendant who expired during pendency of suit and the same was filed
through his heirs which is now brought on record. Now, heirs of original
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N/m No. 417/2020 in Suit No. 2585/2019. 3 Order.
defendant wants to file the Written Statement. The plaintiff has carried
out amendment on 07.10.2023. In such case it can be presumed that
notice of motion at the instance of heirs of original defendant is
presented on or after 07.10.2023. In such case it was necessary for the
heirs of defendant to file Written Statement on record within 30 days of
the service of amended plaint upon heirs. However, both parties are
silent as to service of amended plaint upon proposed heirs of the
original defendant. Record is also silent as to service of amended plaint
upon heirs of the defendant. In such case this notice of motion has
become infructuous. In the result following order is passed :
- ORDER -
1. Notice of Motion No. 417 of 2020 is disposed of as
infructuous.
2. The heirs of original defendant brought on record to file Written
Statement within 30 days of this order if copy of amended plaint
is served upon them prior to this order. OR
3. Heirs of the defendant to file Written Statement within 30 days of
the service of amended plaint if not served earlier.
4. The plaintiff to serve amended plaint, if not served and to file
affidavit of service of amended plaint on record on next date.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 29/07/2024. Mumbai.
1. Dictated on : 29/07/2024.
2. Transcribed on : 30/07/2024.
3. Checked on : 30/07/2024.
4. Signed on : 30/07/2024.
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N/m No. 417/2020 in Suit No. 2585/2019. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30/07/2024. 5.40 p.m. Mrs. Poonam Y. Pawar.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 29/07/2024.
Judgment/Order signed by P.O. on 30/07/2024.
Judgment/Order uploaded on 30/07/2024.
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