Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.611-2020 in L C SU No. 834-2012
MHCC010015842020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
NOTICE OF MOTION NO. 611 OF 2020
in
L C SUIT NO. 834 OF 2012
Uma Manoranjan Amersey ...Applicant/ Org. Defendant No.2
In the Matter Between
Mrs. Leena Rustom Dalal ....Plaintiff
Versus
MCGM & Another .... Defendants
CORAM: H.H.JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 4th DECEMBER, 2021.
Appearance:
-
Shri. Sawant; Ld Advocate for plaintiff.
Shri. Yash Ccheda; Ld Advocate for defendant No.2.
ORAL ORDER
1) Defendant No.2 has taken out this Notice of Motion for
condonation of delay in filing written statement and taking the written
statement of the defendant No.2 on record.
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2 NM No.611-2020 in L C SU No. 834-2012
2) Perused the notice of motion, affidavit in support of NM, plaint
and documents annexed with the plaint and reply affidavit of plaintiff.
Heard Ld Advocate for defendant No.2 and Ld Advocate for plaintiff.
3) Ld Advocate for defendant No.2 argued that the advocate for
defendant No.2 had advised defendant No.2 to obtain sanction building
plan in respect of suit building from the concerned department in order to
file written statement. However, inspite of making several applications
under RTI he did not get any response from the departments of the
defendant No.1 and he received sanction building plans and permission on
4/8/2017. Moreover, notice of motion No.938/12 was dismissed on
30/9/2019 and on that date defendants were directed to file written
statement. Therefore, period of limitation for filing written statement will
have to be calculated from 30/9/2019. Moreover, the amended plaint was
served upon him in August 2017. Therefore, there is just cause for
condonation of delay in filing written statement. The delay is not
intentional. Therefore, defendant No.2 prayed that notice of motion be
made absolute.
4) Advocate for defendant No.2 kept his reliance on the following
citations:-
a) Rani Kusum (Smt) vs Kanchan Devi (Smt) & Ors, (2005) 6 SCC 705;
b)Salem Advocate Bar Association T.N. vs Union of India, (2005) 6 SCC
344.
Court has gone through the observations therein.
5) On the other hand Ld Advocate for plaintiff vehemently argued
that onus is upon the defendants to plead and satisfactorily demonstrate
valid reason for not filing written statement within 30 days. The writ of
summons was served upon defendant No.2 on 10/4/2012 and amended
plaint was served upon defendant No.2 in August 2017. Inspite of same
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defendant No.2 failed to file written statement and additional written
statement. In the present matter from the reasons given by the defendant
No.2 it appears that there is gross negligence on the part of defendant No.2.
Therefore there is no sufficient cause for condonation of delay in filing
written statement. Ld Advocate for plaintiff submitted that notice of motion
be dismissed.
6) From the perusal of the plaint it appears that plaintiff filed the
present suit for declaration that the notice issued u/s. 351 of MMC Act dtd.
1/12/2011 and order dtd.14/3/2012 passed in pursuance of said notice is
illegal, improper, malafide and bad in law. From the record it appears that
the defendant No.2 is the person on the basis of whose complaint defendant
No.1 has taken the action of issuance of impugned notice. The fact that writ
of summons was served to the defendant No.2 in the year 2012 is not
disputed. As per Order 8 Rule 1 of the Code of Civil Procedure defendant
No.2 was under obligation to file written statement within 30 days from the
date of service of writ of summons or within the extended time falling
within 90 days. Therefore, onus is upon the defendant No.2 of a higher
degrees to plead and satisfactorily demonstrate a valid reason for not filing
the written statement within 30 days and to demonstrate that his case
comes within purview of exceptionally hard cases.
7) Therefore, in the present matter it was necessary for the
defendant No.2 to plead and demonstrate a valid reason for not filing the
written statement within 30 days. The defendant No.2 is the complainant
on whose complaint defendant No.1 has taken the impugned action. The
present notice of motion is taken out by the defendant No.2 in February
2020. Therefore, there appear inordinate delay of more than 7 years. The
reasons given for delay in filing the written statement are of general nature
and does not appear to be beyond control of the defendant No.2. The
direction of the court is not necessary for filing written statement. Moreover,
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from the reasons stated for non filing of written statement within time, it
appears that the reason is not adequate and enough. From the matter on
record it appears that defendant No.2 not acted deligently and remained
inactive for several years. There is inordinate delay also. As such there
appear no sufficient cause for condonation of delay and the present matter
does not come within the purview of exceptionally hard case. The
observations in the judgment cited supra that the Order 8 Rule 1 is directory
provision and not mandatory and that time can be extended only in
exceptional cases are now well settled proposition of law. But it does not
mean that the order extending time to file written statement can be made in
routine. As such considering the matter on record and facts of the present
case the notice of motion appears to be devoid of merit.
8) Considering the matter on record and discussion Court hold
that the defendant No.2 failed to plead and satisfactorily demonstrate a
valid reason for not filing written statement within 30 days and no
sufficient and exceptional cause for condonation of delay is demonstrated
by the defendant No.2. Moreover, as no relief is claimed against the
defendant No.2 the case of defendant No.2 does not come within the
category of exceptionally hard cases. Therefore, the notice of motion is
liable to be dismissed. Hence, Court proceeds to pass following order:-
ORDER
1) Notice of Motion No.611/2020 is dismissed.
2) Notice of Motion No. 611/2020 is disposed of accordingly.
Date: 04/12/2021. (K.P. Kshirsagar)
Judge
City Civil Court
Gr. Bombay
Dictated & typed on :04/12/2021.
Checked on : 04/12/2021.
Signed by HHJ on : 04/12/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/12/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
04/12/2021
JUDGMENT/ORDER signed by P.O.
on
04/12/2021
JUDGMENT/ORDER uploaded on 06/12/2021
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