Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.640/2020
MHCC010016782020
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 640 OF 2020
IN
S.C. SUIT No. 585 of 2019
Smt. Kausalyabai w/d of Rajgopal Pillai ...Plaintiff.
VERSUS
Sunil Appa Salunkhe and Ors. ...Defendants.
Appearance
Mr. K.B. Bhambid learned Advocate for the plaintiff.
Mr. Ajit Hodge, learned Advocate for defendant Nos 1 & 2.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 12th August, 2022
O R D E R
This notice of motion is taken out by defendant Nos.1
and 2 for condonation of delay in filing written statement.
2. It is the contention of the defendants that after receipt of
this suit summons both the defendants attended the Court, but they
were unaware about the procedure, they could not take steps to appoint
Advocate to represent them in the suit. In July, 2019 they appointed
Advocate Mr. A.M. Gosavi, whose son was later on admitted in the
hospital and therefore, defendants were unable to give instructions for
-- 1 of 5 --
2 N/M NO.640/2020
finalizing the written statement. Learned Advocate Mr.Gosavi, informed
the defendants to appoint new Advocate and collect the papers from
him. Thereafter, in the month of December, 2019 these defendants
cotacted the present Advocate and in the month of January, 2020 the
instructions were given to him for filing the written statement.
Defendant No.2 was under medical treatment. For all these reasons, the
defendants were unable to file written statement in time therefore, they
have prayed for condonation of delay in filing written statement.
3. The plaintiff by affidavitinreply resisted this notice of
motion. It is her contention that no case is made out for condonation of
delay of 10 months. Lack of legal knowledge cannot be ground for
condonation of delay. According to plaintiff, false and concocted story
is created by the defendants. The defendants were able to appoint new
Advocate if the appointed Advocate was not able to give time. In case
of medical reason as alleged by defendant No.2, defendant No.1 could
have approached to the Advocate for giving instructions. According to
plaintiff there is gross negligence on the part of the defendants and
therefore, notice of motion is liable to be dismissed.
4. Heard learned Advocate for the defendants and learned
Advocate for the plaintiff.
5. Record shows that defendants by filing Vakalatnama of
Advocate Mr. A.M. Gosavi, appeared in the suit on 01.08.2019. It is the
contention of the defendants that said Advocate Mr. A.M.Gosavi was
not available for giving instructions to prepare the written statement as
his son was under medical treatment. It is further contention of the
defendants that later on said Advocate Mr.Gosavi informed the
defendants to engage new Advocate. Record shows that the defendants
have filed Vakalantnam of Advocate Ajit S. Hodage on 01.02.2020.
-- 2 of 5 --
3 N/M NO.640/2020
6. From the record, it appears that the defendants were
served in the month of July/August, 2019. They were required to file
written statement in the month of August/September. The plaintiff has
not filed service affidavit to satisfy when the suit summons were served
to the defendants. In absence of filing of service affidavit it is not
possible to verify the period of limitation for filing written statement.
This notice of motion has been filed on 01.02.2020. There appears to
be delay of near about 5 months. It is the contention of the defendants
that due to medical reason of their earlier Advocate’s son, they were
unable to provide instructions to their Advocate. Later on, they were
required to change Advocate, defendant No.2 was under medical
treatment. On the basis of these reasons, it is their contentions that
there is delay in filing written statement.
7. Learned Advocate for the defendants have relied on the
judgment of Hon’ble Supreme Court in Desh Raj V/s. Balkishan
(dead) through proposed legal representative Ms. Rohini, (2020) 2
Supreme Court Cases 708 wherein, it is held that, all other non
commercial disputes fall within the ambit of the unamended (or
original) provisions of CPC…… as regards the timeline for filing of
written statement in a noncommercial dispute. It is held that the
unamended Order 8 Rule 1 CPC continues to be directory and does not
do away with the inherent discretion of courts to condone certain
delays.
8. Learned Advocate for the defendants further relied on the
judgment in case of Ram Nath Sao alias Ram Nath Sahu Ors. V/s.
Gobardhan Sao & Ors., 2002 (2) ALL MR 588 (SC), wherein, it is
held that, expression “sufficient cause” should receive a liberal
interpretation.
-- 3 of 5 --
4 N/M NO.640/2020
9. Applying ratio of the aforesaid judgments to the facts
before me, the reasons stated by the defendants for not filing written
statement within time can be considered as sufficient reasons. The
defendants have changed their Advocate. Defendant No.2 was under
medical treatment. Considering these facts, there is sufficient reason to
condone delay, I am of the view that the defendants can be allowed to
file written statement by condoning delay. Hence, I pass following
order:
O R D E R
1. Notice of Motion No.640/2020 is allowed subject to costs of
Rs.2,000/ (Rupees Two Thousand Only).
2. Delay in filing written statement by defendant No.1 and 2 is
condoned.
3. Written statement filed by defendant No.1 and 2 shall be taken on
record subject to compliance of order as to payment of costs.
4. Costs shall be paid to the plaintiff on or before next date.
5. Notice of Motion No.640/2020 is disposed of accordingly.
(Rajesh A. Sasne)
Judge,
City Civil Court,
Date : 12/08/2022 Mumbai.
Dictated on : 12/08/2022
transcribed on : 18/08/2022
Signed on : 18/08/2022
-- 4 of 5 --
5 N/M NO.640/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
19.08.2022 at 3.00 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 12/08/2022
Order signed by P.O. on 18/08/2022
Order uploaded on 19/08/2022
-- 5 of 5 --