Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010012352020
CNR NO. MHCC010012352020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.490 OF 2020
IN
S.C. SUIT NO.3961 OF 2008
(HIGH COURT SUIT NO.1600 OF 2008)
Zubair Jabbar Yusuf Solanki ]… Plaintiff.
V/s.
Imran Iqbal Solanki and Ors. ]... Defendants.
Appearances :
Ld. Adv. Rajesh Dixit for plaintiff.
Ld.Adv. S.R. Gupta for defendant Nos.2 to 4.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 8th December, 2022
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
Nos.2 to 4 for allowing them to file their written statement on record.
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2. It was submitted by the defendant Nos.2 to 4 that the suit
was originally filed before the Hon'ble High Court. The defendant
Nos.2 to 4 came to know about the misrepresentation being done by the
defendant No.1 as per the letter dated 08.02.2012. These defendants
also filed an affidavit in Notice of Motion No.2031 of 2008, placing the
aforesaid facts on record. However, the written statement of these
defendants could not be filed in the suit. The earlier advocate has left
the present matter and thereafter, the defendant No.2 to 4 appointed
the present advocate for conducting the proceedings. While preparing
for evidence the present advocate came to know about the same. The
defendant Nos.2 to 4 were not aware about the Court procedure and
they were dependent on their advocate about the legal procedure to be
adopted in the matter. The written statement of defendant Nos.2 to 4
could not be therefore, filed in the present matter. Hence, the present
Notice of Motion is taken out by the defendant No.2 to 4 for condoning
the delay. It was further submitted that if the written statement of
defendant No.2 to 4 is not taken on record, they will suffer serious
prejudice and therefore, their written statement be taken on record.
3. The defendant No.1 filed reply and denied the contention
of the defendant Nos.2 to 4. It was submitted that the present Notice of
Motion is based on false ground and is beyond the law of limitation and
hence it be dismissed.
4. The Advocate for plaintiff gave no objection to allow the
present Notice of Motion.
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5. Heard the Learned Advocate for plaintiff and defendants.
The present suit is filed for the partition between the family members.
The plaintiff has challenged the settlement award which was passed
allegedly on the basis of fabricated documents. The defendant No.1
and other defendants except the defendant No.2 to 4 had filed written
statements long back. The perusal of the Roznama shows that the
defendant No.2 to 4 was being represented by Advocate on each and
every date but the defendant Nos.2 to 4 had not filed their written
statements till date. It seems that due to inadvertance and lack of
knowledge of legal procedure the defendant No.2 to 4 could not file
their written statements within limitation even though they were
appearing in the Court each and every date. The plaintiff had given no
objection for allowing the written statement and only defendant No.1 is
opposing the same. It seems that if the defendant No.2 to 4 are not
allowed to file their written statement on record, they will suffer serious
prejudice whereas no such harm will cause to the plaintiff or other
defendants. Even though there is inordinate delay, the defendants have
satisfactorily explained the said delay and made out a sufficient cause.
Under these circumstances, it would be appropriate to condone the
delay in filing written statement. Also for the fair adjudication of the
matter on merits it would be appropriate to condone the delay and
allow the defendant Nos.2 to 4 to file their written statement on record
and therefore, I proceed to pass the following order:
ORDER
1. The Notice of Motion No.490 of 2020 is allowed.
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2. The Defendant no.2 to 4 are directed to file Written statement on
next date.
3. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 08122022 City Civil Court, Gr. MUMBAI
Dictated on : 08122022
Transcribed on : 12122022
checked on : 12122022
Signed on : 13122022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.12.2022 at 03.40 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
08.12.2022
Judgment/order signed by P.O. on 13.12.2022
Judgment/order uploaded on 13.12.2022
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