Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M No.424/2019 in Suit No.1588/2017
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 424 OF 2019
(C.N.R. No. MHCC01-001088-2019)
IN
S. C. SUIT NO. 1588 OF 2017
C.N.R. No. MHCC01-006853-2017)
Smt. Bishnu Priya W/d Ashok Maity. ]..Plaintiff.
V/s.
1. B.E.S.T. Undertaking of the Greater ]
Bombay and other. ]..Defendants.
Advocate Ms. Yasmin Sarang for the defendant no.1.
Advocate Mr. V.K. Gupta for the plaintiff.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 16th MARCH, 2020
ORAL ORDER
This notice of motion is taken out by the defendant no.1
praying to condone the delay of 500 days in filing written statement
and to allow him to file his written statement on record.
2 It is contended by the defendant no.1 that when this suit
was fixed for ex-parte hearing, he came to know that the written
statement has not filed by him due to oversight though it was already
drafted on 13 .10.2017. The defendant No.1 is a public undertaking and
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the draft of the written statement was to be finalized by verifying the
voluminous record. The Senior Management Officer took time for such
verification and consequently, the delay has been caused to file the
written statement which is not deliberate but was unavoidable.
3. The plaintiff has resisted this notice of motion by filing
reply contending that the writ of summons was served on this
defendant on 13.10.2017 and the defendant failed to file his written
statement within 30 days therefrom. Therefore, ‘No written statement’
order was rightly passed on 8.12.2017. The plaintiff denied that the
time was lapsed in taking verification of the record. The defendant has
taken out this notice of motion by causing delay of 215 days even after
knowledge of ‘No written statement’ order. Thus, the delay is not
properly explained and therefore, delay cannot be condoned.
4. Heard the learned advocates for both the parties and
perused the record and grounds for condonation of delay. The learned
advocate for the plaintiff has relied on the judgment of the Hon’ble
Bombay High Court in Nandkishor Agrawal v/s Dhule Municipal
Corporation (2012 (1) Mh.L.J. 918) wherein, it is held that the term
“sufficient cause” under Sec.5 of the Limitation Act should receive
liberal construction. However, it is equally true that it must comply with
concept of reasonable time and proper conduct of concerned party. This
concept cannot be made applicable differently to a private citizen and to
Govt. Authorities. By relying on this ruling, the learned advocate for the
plaintiff submits that the defendant No. 1 cannot be treated differently
only because it is a public undertaking.
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5. It shall be noted that the object of amendment to O.8 R.1 of
CPC is to curtail delay in trial of the suits and for that purpose, certain
outer time limit is provided to file written statement. This provision is
directory in nature and therefore, as held in the above cited judgment,
concept of reasonable time and conduct of the parties have paramount
importance. Looking to the matter in hand from this point of view, the
“No written order” was passed way back on 8.12.2017. Since then the
plaintiff has not led evidence and proceeded with the trial of the suit.
She indirectly gave an opportunity to the defendant No.1 to come with
written statement. This notice of motion was taken out by the
defendant No.1 on 27.11.2018 but since then, the plaintiff failed to file
her reply to this notice of motion. Only when this notice of motion was
heard without reply on the last date, the plaintiff came with reply and
argued on the same date. Thus, while considering the delay caused by
the defendant No.1, the delay caused by the plaintiff is also required to
be considered. The plaintiff is not entitled to claim benefit for her own
negligence.
6. Considering the aforesaid circumstance, no doubt the
defendant No. 1 has caused delay to file his written statement, such
delay shall not defeat justice. Since the plaintiff by her own negligence
has facilitated the defendant No.1 to file his written statement at such
belated stage, law does not permit to condemn him unheard. It would
be in the interest of justice to resolve dispute involved in the suit by
giving opportunity of hearing to the defendant No.1. The delay shall not
be allowed to defeat justice. In the result, I hold that the delay shall be
condoned and the defendant No. 1 shall be allowed to file his written
statement. As the plaintiff herself found to be equally negligent, she
would not be entitled to any cost for such delay. Hence the order.
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ORDER
1. Notice of Motion No.424 of 2019 is made absolute.
2. The delay to file written statement is condoned and the defendant
No.1 is allowed to file written statement on record.
3. Notice of Motion No.424 of 2019 stands disposed of accordingly.
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: 16/03/2020. Gr. Bombay.
Dictated on : 16/03/2020
Transcribed on : 16/03/2020
Signed on : 16/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16/03/2020 At 05.40 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
16/03/2020
Judgment/Order signed by P.O. on 16/03/2020
Judgment/Order uploaded on 16/03/2020
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