Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M. No. 616/2020 in
S.C. Suit No.4791/2011. 1 Order.
MHCC010015822020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 616 OF 2020
IN
S.C. SUIT NO. 4791 OF 2011
Vilas Krishnarao Basutkar ... Plaintiffs
V/s.
Prakash Krishnarao Basutkar and Ors. ... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.29).
DATE : 22.01.2024
Appearance :
Ld. Advocate Shri. Dhananjay Pathak for plaintiff.
Ld. Advocate Shri. Ravindra Hazari for the defendant No.1.
ORDER
1. Defendant No.1 has taken out this Notice of Motion for
setting aside exparte order dated 19.03.2013, to condone the delay and
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N.M. No. 616/2020 in
S.C. Suit No.4791/2011. 2 Order.
allow him to file written statement. Plaintiff filed reply affidavit and
opposed the Notice of Motion.
2. Advocate for defendant No.1 and advocate for plaintiff filed
written arguments in support of their respective contentions.
3. The present suit is filed for partition of suit premises i.e.
Flat No.44/B, Parijat Cooperative Hsg. Ltd. at Bandra, Mumbai.
Plaintiff and defendant No.1 are real brothers and defendant No.2 is
widow of their another brother. Defendant no. 3 is Cooperative
Housing Society. The present suit was initially filed in the month of
November 2011 in Hon’ble High Court. As per record, writ of summons
was served on defendant No.1 and advocate Shri. Ravindra Hazari had
filed vakalatnama in the said suit on or about 10.02.2012. Thereafter,
within 4 to 5 months, the suit was transferred to this court because of
enhancement of pecuniary jurisdiction of City Civil Court, Gr. Mumbai.
Then, the plaintiff filed affidavit of service on the basis of which ex
parte order came to be passed against defendant No.1 on 19.03.2013.
After about 6 to 7 years at the stage of final argument, defendant No.1
moved the present Notice of Motion.
4. In written argument, Learned advocate Shri Ravindra
Hazari for defendant No.1 submitted that, he had filed vakalatnama in
the present suit on or prior to 10.02.2012 when the suit was pending in
the Hon'ble High Court. Then the suit is transferred to this Court. There
is no reference of vakalatnama filed by him in the roznama since 2013,
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N.M. No. 616/2020 in
S.C. Suit No.4791/2011. 3 Order.
though it reflected in case status when it was pending in Hon'ble High
Court. It is submitted that, after transfer of this suit in City Civil Court,
defendant No.1 and his advocate inadvertently lost the track of the suit
and could not appear and file written statement. There is no deliberate
delay in not filing written statement. Plaintiff had filed 5 different cases
in 5 different Courts which are contested by defendant No.1. Hence,
defendant will not be benifited by not filing written statement.
Defendant No.1 is senior citizen and patient of cardiac disease and
undergone bypass surgery. Doctor had advised him complete rest. He
was suffering by said medical problem for the preceding five years prior
to filing Notice of Motion. It is also submitted that written statement
filed by defendant No.1 alongwith Notice of Motion is already taken on
record and marked as Exh.15 way back on 18.12.2019. In these
circumstance, exparte order be set aside and Notice of Motion be made
absolute.
5. In written argument, Learned advocate Shri. Dhananjay
Pathak for plaintiff submitted that, the reasons given by defendant No.1
in his affidavit in support, are unbelievable and not sufficient cause.
The length of delay is not mentioned in the Notice of Motion.
Defendant No.1 had not filed written statement within the period of 30
days or within extended period of 90 days from from the date of service
of summons. Defendant No.1 was well aware about filing of the suit
and transfer of it from Hon'ble High Court into City Civil Court.
Defendant No.1 is appearing and contesting others matters filed by
plaintiff in respect of other properties. Members of managing committee
of defendant No.3 had time to time made aware to defendant No.1 and
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N.M. No. 616/2020 in
S.C. Suit No.4791/2011. 4 Order.
defendant No.2 about pendency of present suit. No satisfactory reasons
are given for setting aside exparte order and condoning the delay.
Hence, learned advocate for plaintiff prayed to dismiss the Notice of
Motion.
6. I have considered submissions and perused the record. It is
a matter of record that, initially suit was filed in the Hon'ble High Court
in November 2011. Writ of Summons were issued to defendants No.1
and 2 on January/February 2012. After service of writ of summons,
advocate Shri. Hazari for defendant No.1 filed vakalatnama which is
reflected in the case status, copy of which is filed alongwith Notice of
Motion. Thus, it is not a factual position that defendant No.1 failed to
appear on the first date of appearance after service of writ of summons.
7. It is matter of record that, in or about October 2012, suit
was transferred from Hon'ble High Court into this Court. It is submitted
that, so many matters were transferred at the relevant time and the
vakalatnama filed by defendant No.1 is not reflected and not made part
of the record and proceeding when the matter is taken on board in the
City Civil Court since commencement of proceeding of this Court on
19.03.2013. It appears from record that, advocate for plaintiff filed
service affidavit showing the service of summons in February 2012 and
on that basis, exparte order is passed. However, factual position is that
advocate Hazari for defendant No.1 had filed vakalatnama when the
matter was pending in the Hon'ble High Court. There is no fresh service
of notice after transfer of suit in City Civil Court. In such circumstances,
exparte order could not have been passed against defendant No.1
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N.M. No. 616/2020 in
S.C. Suit No.4791/2011. 5 Order.
when Advocate Hazari had already filed vakalatnama in the suit in
Hon'ble High court.
8. It is not in dispute that, plaintiff has filed various matters in
various Courts i.e. 5 proceedings as submitted by defendant No.1. It is
also not in dispute that, defendants No.1 and 2 are contesting the said
proceeding in various Courts. Hence, in my view, defendant No.1 could
not have been benefited by not filing written statement and not
contesting the present suit. Thus, I find substance in the submission of
learned Advocate for defendant No.1 that, after transfer of the suit in
this Court, inadvertently defendant No.1 and his advocate lost the track
of the suit, overlooked the same and they didn't appear in the suit.
9. Though 3o days period is prescribed under O.8 R. 1 of CPC
for filing written statement which can be extended upto 90 days in
total, but said provision is directory and not mandatory and court can
permit defendant to file written statement beyond said period as laid
down in Salem Advocate Bar Association, Tamil Nadu Vs. Union of
India, AIR 2005 SC 3353.
10. Defendant No.1 has also taken ground of illness which is
supported by medical certificate. One more circumstance is that written
statement filed by defendant No.1 is rightly or wrongly taken on record
before deciding this present Notice of Motion and it is at Exh.15. It is
true that, notice of motion is taken at stage of final argument, but
considering all aforesaid circumstances and having regard of the suit for
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N.M. No. 616/2020 in
S.C. Suit No.4791/2011. 6 Order.
partition of immovable property amongst the legal heirs of father of
plaintiff and defendants No.1 and 2, I am of the view that, no serious
prejudice will cause to plaintiff if exparte order is set aside and
defendant No.1 is allowed to contest the suit by filing the written
statement on record. It will be helpful to decide the suit on merits. For
delaying the matter approximately for 9 years, costs can be imposed to
compensate the plaintiff. In this view of the matter, I pass following
order:
ORDER
1. Notice of Motion No.616 of 2020 is allowed in terms of
prayer clauses (a) to (c).
2. Exparte order dated 19.03.2013 is set aside and delay is
condoned subject to costs of Rs.3,000/ payable to plaintiff within
3 weeks from today.
3. After deposit of costs in Court or payment of it to plaintiff,
written statement is allowed to be taken on record.
4. Notice of Motion No.616 of 2020 is disposed off
accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date : 22.01.2024 Gr. Bombay.
1. Dictated on : 22.01.2024
2. Transcribed on : 22.01.2024
3. Checked and Signed on : 22.01.2024
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N.M. No. 616/2020 in
S.C. Suit No.4791/2011. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22.01.2024 4.18 p.m. Mrs. Shravanti Karre
Name of the Judge HHJ Shri N.G. Shukla
(Court Room No.29).
Date of Pronouncement of Judgment/Order 22.01.2024
Judgment/Order signed by P.O. on 22.01.2024
Judgment/Order uploaded on 22.01.2024
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