Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No. 539/2019 in Suit No. 1371/2017
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.539 OF 2019
(CNR NO. MH CC010013902019)
IN
C.C. SUIT NO. 1371 OF 2017
(CNR NO. MH CC010113292016)
Jagdish Shivram Pawar ].. Plaintiff.
V/s.
Prakash Shivram Pawar and others ]..Defendants
Advocate Mr. R. R. Choudhary for defendant no.1.
Advocate Ms. Renuka Pawar for the plaintiff.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 21st AUGUST 2019
ORAL ORDER
This Notice of Motion has been taken out by defendant
no.1 for condonation of delay in filing written statement and for setting
aside”No Written Statement” order passed on 10.102018 and for
seeking permission to file written statement on record.
2 Defendant no.1 has filed affidavit in support of notice of
motion, wherein he has stated that writ of summons has been served
upon defendant no.1 on 06.04.2018. Further, he has averred that
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2 N/M No. 539/2019 in Suit No. 1371/2017
defendant no.1 was searching for an advocate and advocate had taken
date from the Court on 20.04.2018 and again adjourned to 27.07.2018,
but advocate failed to file written statement and started avoiding
defendant no.1. Defendant no.1 realized that the said advocate is no
more interested to appear. Therefore, defendant no.1 approached to
another advocate and appointed another advocate. Due to said reason,
defendant no.1 could not file written statement. It is further averred
that defendant has a good case on merits and the principle of natural
justice demands, defendant no.1 should be given opportunity to defend
the present suit. Thus, prayed for allowing notice of motion.
3 The plaintiff has filed affidavit in reply and resisted notice
of motion in toto. It is contended that defendant no.1 appeared on
20.04.2018 in the Court, but did not file written statement for reason
best known to him The reasons stated by defendant no.1 are improper
and against the provision of law. Hence, prayed for dismissal of notice
of motion.
4 Heard, learned advocate for defendant no.1 and the
learned advocate for the plaintiff.
5 It seems that defendant no.1 has filed this notice of motion
through newly advocate appointed. It is urged by the learned advocate
for the plaintiff that defendant no.1 has not tendered any
correspondence with earlier advocate. Therefore, reason is not
acceptable. But considering the facts that now defendant no.1 before
the Court through new advocate and intends to defend the suit. In such
peculiar circumstances, reason stated by defendant no.1 is sufficient to
accept, so as to give opportunity to defendant no.1 in order to decide
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the suit on merits and real controversial issues between the parties on
merits. If the present notice of motion is allowed, no prejudice would
be caused to the plaintiff. No doubt, there is delay on the part of
defendant no.1 and it caused delay in the suit. Therefore, the plaintiff
is to be compensated for said delay by imposing heavy costs upon
defendant no.1, while allowing this notice of motion. Thus, notice of
motion is to be allowed by imposing costs upon defendant no.1. With
this, I proceed to pass the following order:
ORDER
1 Notice of Motion No. 539 of 2019 is made absolute in terms of
prayer clause (a), (b) and (c) subject to payment of costs of Rs.3,500/
(Rupees Three Thousand Five Hundred only) payable by defendant
no.1 to the plaintiff on or before next date.
2 On payment of costs, already tendered written statement by
defendant no.1 along with notice of motion, be taken on record on the
next date.
3 Failure to make compliance, notice of motion will be dismissed
automatically.
4 Notice of Motion No 539 of 2019 stands disposed of accordingly.
(S. P. PONKSHE)
Judge,
Date: 21/08/2019. City Civil Court,
Gr. Bombay.
Dictated on : 21/08/2019
Transcribed on : 21/08/2019
Signed on : 22/08/2019
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4 N/M No. 539/2019 in Suit No. 1371/2017
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22/08/2019 At 4.50 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
21.08.2019
Judgment/Order signed by P.O. on 22.08.2019
Judgment/Order uploaded on 22.08.2019
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