Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 316 of 2018 in L.C. Suit No.3040 of 2007
CNR No.MHCC010049162007
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 316 OF 2018
IN
LONG CAUSE SUIT NO. 3040 OF 2007
M/s. Backbay Properties Pvt. Ltd. ]..Plaintiff
Versus
The Municipal Corporation of Greater ]
Mumbai. ]... Defendant
Coram : M. S. Deshpande, Judge
(Court Room No. 5)
Date : 05th July, 2018.
Ms. Indira Bhushan with Mr. P.D. Gandhi, advocate for the plaintiff.
Ms. Patil, advocate for the defendant Corporation.
ORDER
1 The defendant has taken out this notice of motion for
condonation of delay in taking out the notice of motion and further for
setting aside the order of hearing the suit without written statement
dated 02.03.2015, and allowing it to file written statement on record.
2 The facts in brief are that the plaintiff has challenged notice
and order issued under section 351 of MMC Act. On 02.03.2015, the
suit was directed to be heard without written statement. Thereafter,
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2 NM 316 of 2018 in L.C. Suit No.3040 of 2007
plaintiff filed affidavit of evidence. The cross examination was recorded.
Thereafter the plaintiff closed its evidence. The Ld. Advocate for the
plaintiffs made submissions. Thereafter, the present notice of motion
has been taken out on the ground that due to heavy work load and
misplacement of record and papers the written statement could not be
filed in time. According to the Ld. Advocate for defendant the defendant
having good case and if it is not allowed to file written statement, it will
suffer great prejudice and loss.
3. On the other hand the Ld. advocate for plaintiff submitted
that the application is not maintainable. In abuse of process of law the
defendant is playing delaying tactic and moved this application in most
causal manner after arguing the matter finally by the advocate for the
plaintiff. According to her there are various departments of the
defendant for various works and thus, the reason stated is not proper
and sufficient.
4. Considering submissions and the matter in dispute i.e. the
legality of the structure raised by the plaintiff, it is necessary that the
suit should be decided on merits. The Hon'ble High Court Bombay in
the case of Vimalkumar vs. Vinodkumar reported in 1999 (1)
Mh.L.J. 180, has laid down that the Rule 10 of Order VIII of Civil
Procedure Code gives discretion to the court to permit the defendant to
file written statement at any stage prior to pronouncement of judgment.
The reasons stated by the defendant for failure to file written statement
at belated stage are sufficient to condoned delay and allow the
defendant to file written statement. There is no deliberate delay in the
matter as adinterim protection was earlier granted to the plaintiff. In
the circumstances the motion deserves to be allowed. The prejudice
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3 NM 316 of 2018 in L.C. Suit No.3040 of 2007
which may be caused to the plaintiff can be compensated in terms of
costs. Thus, the following order is passed:
ORDER
1. Notice of Motion No. 316 of 2018 is made absolute in terms of
prayer clause (a) and (b) subject to payment of costs of
Rs.1,000/ to the plaintiff.
2. On compliance of the aforesaid order, on or before 19/07/2018,
the written statement be taken on record.
(M.S. Deshpande)
AdHoc Judge,
Dated: 05.07.2018 City Civil Court, Mumbai.
Directly typed on : 05.07.2018
Checked by HHJ on : 05.07.2018
Signed by HHJ on : 05.07.2018
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4 NM 316 of 2018 in L.C. Suit No.3040 of 2007
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 09.07.2018 at 1.00 p.m.
NAME OF TYPIST : Mrs. Nilam Achrekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
05.07.2018
JUDGMENT/ORDER signed by
P.O. on
05.07.2018
JUDGMENT/ORDER uploaded
on
09.07.2018
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