Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 466/19 SUM.SUIT 389/18 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOITON NO. 466 OF 2019
IN
SUMMARY SUIT NO.389 OF 2018
(CNR NO.: MHCC010011562019)
Kantilal Kothari ...Plaintiff
Versus
Orbit Constructions & Anr. ...Defendants
Appearances:
Advocate Mr.Vora for the Plaintiff.
Advocate Mr.Khatri for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. M.S.LONE
(C.R.NO.28)
DATED : 19TH AUGUST 2019
ORDER
1. This is notice of motion for condonation of delay in filing
vakalatnama on behalf of defendant No.1 with additional prayer to set
aside the order of exparte dated 14 th November, 2018.
2. Heard Ld. Counsel for defendant No.1 and Ld. Counsel for
plaintiff.
3. From the material on record following points arise for my
determination and my findings with reasons are as follows:
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NM 466/19 SUM.SUIT 389/18 2
POINTS FINDINGS
1. Whether there are sufficient cause
to condone the delay of filing
vakalatnama by defendant No.1 ?
Yes
2. Whether there is sufficient cause
to set aside the order of exparte
dated 14th November, 2018 ?
Yes
3. What order? As per final order
REASONS
AS TO POINT NOS.1 to 3
4. The Ld. Counsel for defendant No.1 submitted that suit summons
were served on wrong address of defendant no. 1. The defendant no. 1
has good defence and great prejudice would be caused to defendant no.
1 if he is not allowed to contest this suit.
5. The Ld. Counsel for plaintiff has resisted this application by filing
reply. The Ld. Counsel for plaintiff has submitted that the suit summons
was served upon defendant No.1 on 18/04/2018 by the court bailiff.
Inspite of such service defendant No.1 choose to remain absent and
therefore suit is proceeded exparte. The defendant No.1 has taken
ground of delay but as per the provisions of law has not explained the
delay of each and every day. The defendant No.1 has taken a casual
approach and has not shown any reasonable cause for the condonation
of delay.
6. Though it is bounded duty of defendant No.1 to explain day to
day delay but the court has to see that no one has put to injustice due to
failure to prove such day to day delay. It is undisputed that defendant
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NM 466/19 SUM.SUIT 389/18 3
No.1 was served on 18/04/2018 and he was supposed to file his
appearance within 10 days from 18/10/2018. Defendant No.1 remain
absent and suit is proceeded exparte against him. It is undisputed that
there is delay in filing the vakalatnama. Defendant no. 1 intends to
contest this suit, in such circumstances defendant no. 1 should be given
fair chance to participate in the proceedings. Without taking any hyper
technical view and taking into consideration the concept of fair trial the
delay can be condoned subject to appropriate costs. If the delay is
condoned then the setting aside of exparte order has to follow.
Accordingly, point No.1 and 2 is answered in affirmative and following
order is passed.
ORDER
1. Notice of Motion No.466/2019 is allowed.
2. The delay for filing vakalatnama of defendant No.1 is condoned
subject to cost of Rs.5,000/ (Rs.Five Thousand only)to be paid to the
plaintiff on or before next date.
3. On payment of cost as directed above, the order to proceed
exparte dated 14th November, 2018 is set aside and vakaltnama shall be
taken on record.
4. Notice of Motion No.466/19 stands disposed of accordingly.
(M.S.LONE)
Judge,
Date: 19/08/2019 City Civil Court,Gr. Bombay
Dictated on : 19/08/2019
Transcribed on : 20/08/2019
Signed on : 20/08/2019
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NM 466/19 SUM.SUIT 389/18 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
23/08/2019 at 5.25 p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of Judgment/Order 19/08/2019
Judgment/Order signed by P.O. on 20/08/2019
Judgment/Order uploaded on 23/08/2019
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