Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 541-19 in SC. Suit no. 2873-2019
1 Date : 18.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 541 OF 2019
IN
S.C. SUIT NO. 2873 OF 2019
(CNR NO.MHCC010014182019)
Bharathan Kunju Panicker .. Plaintiff
Versus
M/s. Mehta And Co. .. Defendants
Appearances :
Adv.Ankit Rajput for plaintiff present.
Adv.R.D.Thorat for defendant present
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 18.09.2019
ORDER
1. The defendants filed instant Notice of Motion for setting
aside order dated 13.12.2017, by which, this Court proceeded
without Written Statement of the defendants. The defendants
further prayed for condonation of 405 days delay in taking out
Notice of Motion and filing Written Statement on record.
2. It is contended by the defendants that, the plaintiff filed
instant suit under Section 6 of Specific Relief Act and seeking
possession of the suit property from the defendants alongwith the
material, Stockintrade, furniture and fixture and sewing machine
worth Rs. 2,00,000/. It is contended by the defendants that on
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16.01.2017, the Advocate Ms. Parasnis appeared on their behalf
and filed Vakalatnama and sought time to file reply as well as
Written Statement to the Notice of Motion No. 41 of 2017. On
that day, the Court directed to maintain statusquo till filing of the
reply by the defendants. It is submitted by the defendants that the
said Advocate Ms. Parasnis although filed her Vakalatnama in the
matter, but she was not medically fit, therefore, she personally did
not appeared in the matter and on her behalf her junior colleagues
were appeared time to time in the matter. On 22.09.2017 when
the matter was fixed for filing of reply to Notice of Motion No. 41
of 2017, on that day, none appeared on behalf of the defendants.
Hence, this Court proceeded without reply of the defendants and
the matter was proceeded on 13.12.2017. However, on
13.12.2017 further nobody had appeared on behalf of the
defendants and therefore, this Court passed an order to proceed
without Written Statement of the defendants. In the meantime,
the defendants tried to communicate with their Advocate Ms.
Parasnis, but she did not inform about the aforesaid fact to the
defendants. Even on 10.07.2018, their Advocate filed discharged
application from the suit. On 10.07.2018, the son of defendant
Mr. Rohitkumar Mehta had appeared before the Court and sought
time to engage new Advocate. Court granted him time to appoint
new Advocate.
3. It is contended by the defendants that since then the
defendant no. 3 trying to obtain NOC by the previous Advocate
and was in the process of appointing new Advocate. After getting
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NOC of the new Advocate on 05.09.2018, they have engaged the
present Advocate who have filed his Vakalatnama on 29.10.2018.
Further, the present Advocate sought time to file proper Notice of
Motion for setting aside ‘No WS’ order as well as for proper
Written Statement in the matter. Even the present Advocate was
busy in his urgent final hearing matters and therefore, Written
Statement could not be prepared. On 21.01.2019, defendant filed
instant Notice of Motion and on 03.04.2019, the plaintiff sought
time to file reply to the Notice of Motion.
4. Thus, it is contended by the defendant that, due to the illness
of earlier Advocate, she could not file Written Statement and reply
on record and thereafter substantial time has been passed in
appointing new Advocate and for taking steps for setting aside ‘No
WS’ Order. Therefore, delay of 405 days has been caused in
preparing instant Notice of Motion.
5. It is contended by the defendants that the delay caused is
due to unavoidable circumstances and beyond control of the
defendants. The defendants are having good case on merit as well
as on law. If the delay is not condoned and impugned order is not
set aside, great prejudice would be caused to them. Hence, the
defendants prayed for allowing present Notice of Motion.
6. The Notice of Motion is opposed by the plaintiff by filing his
say. It is contended by the plaintiff that the defendants are in a
possession of the suit premises and they are trying to delay the
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4 Date : 18.09.2019
matter purposefully with intention to delay the present suit. The
earlier Advocate inspite of appearing in the matter, intentionally
did not file reply and Written Statement and thus, dragging the
matter somehow in order to deprive the plaintiff of his legitimate
right to the exclusive use of the possession of the suit property.
7. It is contended by the plaintiff that defendants time and
again sought adjournment on the ground of appointing new
advocate and they did not deserve the sympathy of the Court. The
defendant did not file any documentary evidence to justify their
reasons for condonation of the delay.
8. It is further contended by the plaintiff that the defendants
were duly served on 16.01.2017. They have appeared in the
matter and sought time to file reply Hence, the contention of the
defendant that they were not served with the Writ of Summons is
not tenable. Hence, sum and substance of the objection of the
plaintiff is that the defendants unnecessarily trying to prolong the
matter so as to defeat the legitimate claim of the plaintiff. Hence,
he prayed for the suit to proceed Exparte and rejection of the
present Notice of Motion.
9. Heard both the sides. Perused Notice of Motion, reply and
Roznama. Upon perusal of the Roznama, it appears to me that on
16.01.2017, the defendants appeared through one Advocate Ms.
Parasnis. Thereafter, matter was adjourned time to time and on
behalf of Advocate Ms. Parasnis one Advocate Ms. Nehal, Advocate
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Thapa, Advocate Ms. Bhagyalakshmi had appeared. But they did
not file any reply or Written Statement on record. Therefore, on
22.09.2017, Notice of Motion No. 41 of 2017was proceeded
without reply of the defendants and the matter was adjourned to
13.12.2017. On that day also, nobody appeared on behalf of the
defendants. Thus, it appears to me on 22.09.2017 and
13.12.2017, the defendant was not represented by the Advocate
on 10.07.2018. One Advocate Ms. Thapa had appeared and filed
discharged application.
10. Thus, on perusal of the Roznama, I find that the Advocate on
record Ms. Parasnis did not appeared after 16.01.2017. Thus, I
find the reason of none appearance as assigned by the defendant
that their advocate Ms. Parasnis was not keeping well, is justified
although there is no documentary evidence brought on recored, it
appears that the advocate of defendants did not take any proper
steps to file Written Statement or reply.
11. Even as per Roznama dated 17.09.2018, it appears that the
defendant has received NOC of earlier Advocate on 05.09.2018
and thereafter, on 29.10.2018, present Advocate has filed his
appearance. Thus, looking to the reasons assigned by the
defendant, it appears to me that due to non cooperation and
inaction on the part of the Advocate, the reply and Written
Statement could not be filed on record.
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12. In my view, due to the fault of Advocate, the litigants should
not be suffered. Moreover, if the suit is proceeded Exparte, the
outcome would be not on merit. The plaintiff is claiming
possession from the defendant who is admittedly owner of the suit
premises. Therefore, looking to the reliefs claimed by the plaintiff,
in my view, it is absolutely necessary to decide the suit on its merit
by allowing defendant to defend its side. The inconvenience
caused to the plaintiff can be compensated by awarding reasonable
cost of Rs. 5,000/. Thus, I proceed to pass the following order.
ORDER
1. Notice of Motion No. 541 of 2019 is hereby made absolute in
terms of prayer clause “a to c” subject to the payment of cost
of Rs. 5,000/ by the defendant to the plaintiff.
2. Defendant is allowed to file its Written Statement after
payment of the aforesaid cost to the plaintiff.
3. The defendant to bear cost of present Notice of Motion.
4. Notice of Motion No. 541 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 18.09.2019 Gr. Bombay
Dictated on : 18.09.2019
Typed on : 18.09.2019
Operative Order uploaded on : 18.09.2019
Draft Submitted on : 18.09.2019
Checked on : 21.09.2019
Signed on : 21.09.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
21/09/2019 at 12.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
18/09/2019
JUDGMENT/ORDER signed by P.O.
on
21/09/2019
JUDGMENT/ORDER uploaded on 21/09/2019
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