Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 480 OF 2019
IN
S.C. SUIT NO. 1170 OF 20153
Smt. Raji Padmanabhan .. Applicant(org.
Defendant)
In the matter between
Dr. Suresh Ramaswamy Iyer .. Plaintiff
Versus
Smt. Raji Padmanabhan .. Respondent
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 10th April, 2019
Mrs. Preeti Dambare,ld. adv. for defendant no. 1.
Mr.Asif Shaikh h/f Mr. Mishra, ld. adv. for plaintiff.
O R D E R
1. This N/m is taken out by defendant no. 1 for setting
aside no WS order dated 27.06.2017 passed by my learned
predecessor against defendant no. 1. Defendant no. 1 has filed his
affidavit in support of N/m contending that this suit is filed by
plaintiff who is brother of defendant no. 1. It is alleged that
plaintiff's claim is based on bundle of sham and bogus contentions.
Defendant no. 1 was very busy looking after her parents and at the
time of filing of N/m her husband was suffering from illness,
therefore she was not getting time for herself . It is further
contended that at the age of 68 years defendant no. 1 is rendering
strengthless due to various illnesses and therefore she was
prevented on many occasions to appear before the Court. She has
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learnt about the fact of no WS order passed by the Court due to her
continuous absence. However she had instructed to her lawyer to
file the written statement on her behalf but due to her illness she
was prevented from going through the draft of written statement to
her full satisfaction. Her lawyer had done the best but since she
was not in a position to read and understand the same, she had
given instructions to her lawyer not to file written statement. It is
contended that at the of filing this N/m defendant no. 1 became
able to read contents of written statement and she has drafted new
written statement by giving proper instructions as the draft of
written statement prepared by her advocate was not at all as per
what she was intending to say. It is further contended that
defendant no. 1 is disabled from defending herself and therefore no
WS order is necessary to be set aside.
2. Plaintiff's advocate has replied the N/m by filing his say
on the N/m itself. In said say it is contended that sufficient
opportunity was given to defendant to file written statement and
thereafter plaintiff has filed affidavit of evidence and the matter was
kept for marking of the documents. Therefore defendant no. 1 is
not entitled to recall no WS order passed against her because she
has taken out this N/m at the stage of recording of evidence. Hence
plaintiff's advocate has prayed to dismiss the N/m.
3. Heard advocate Mrs. Preeti Dambre for defendant no.
1 and advocate Mr. Asif Shaikh h/f advocate Mr. Mishra for
plaintiff. I have perused roznama of the suit. Said roznama shows
that since 03.07.2013 advocates were appearing on behalf of
defendants. However roznama dated 27.06.2017 shows that no
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one was present before the Court on said date on behalf of either of
the parties and Court has passed no WS order against defendant no.
1. Considering the facts mentioned in the affidavit filed in support
of N/m and further considering the fact that defendant no. 1 has
shown her age as 68 years, it can be said that it is but natural that
person of 68 years age may suffer from various problems of health
and therefore it cannot be disbelieved that defendant no. 1 was
prevented from attending the Court due to her health problems.
Even though it is mentioned in the affidavit in support of N/m that
husband of defendant no. 1 was also suffering from illness no
documentary evidence to that effect is filed on record. Anyhow as
defendant no. 1 is intending to contest the matter and she has
alleged that plaintiff's claim is sham and bogus, I find that it will be
proper on the part of plaintiff to get contested decree if at all he will
succeed. However from record it becomes clear that after 4 years
of appearance of defendant no. 1 Court has passed no WS order
against defendant no. 1 and after said order after about 2 years this
N/m is taken out. As such it can be said that delay for about 7
years is caused in filing written statement by defendant no. 1.
Hence I find that while setting aside no WS order passed against
defendant no. 1 it is necessary to order her to bear heavy costs, so
that by paying said cost amount to plaintiff, he can be compensated
for the delay caused in the matter. Considering the delay caused in
filing written statement I find that to give opportunity to defendant
no. 1, no WS order passed against defendant no. 1 can be set aside
subject to cost of Rs. 7000/ to be paid by defendant no. 1 to
plaintiff. At this stage it is pertinent to note here that written
statement prepared by defendant no. 1 is before the Court. Hence I
proceed to pass following order.
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O R D E R
1. N/m No. 480/19 is made absolute in terms of prayer
clause (a).
2. No WS order passed against defendant no. 1 is set aside
subject to cost of Rs. 7000/ to be paid by defendant
no. 1 to plaintiff within 12 days from today.
3. As soon as defendant no. 1 will pay cost to plaintiff
written statement filed by defendant no. 1 will be taken
on record.
(K.P.Nandedkar)
Judge,
City Civil Court,
10/04/2019 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
11/04/2019 Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 10/04/2019
Judgment/order signed by P.O on 11/04/2019
Judgment/order uploaded on 11/04/2019
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