Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 658/20(Suit 3952/12)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.658/2020
(CNR NO.MHCC010017012020)
IN
S.C. SUIT NO. 3952/2012
1. Asha Bipinchandra Shah
2. Nikesh Bipinchandra Shah
3. Sahil Bipinchandra Shah ...Plaintiffs
V/s.
1. Shashikant Vrujlal shah
2. Rasilaben Jawaharlal Shah
3. Harshadbhai Vrujlal Shah
4. Dinesh Vrujlal Shah .. Defendants.
Appearances :
Adv. Pankaj Shah i/b P. M. Shah for plaintiff.
Adv. Rajesh Talekar for defendant no.1.
Adv. Roshan Yadav for defendant no.2.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 26.11.2021.
ORDER
1. Defendant no.2 has filed instant notice of motion seeking
condonation of 2638 days' delay in filing Written Statement and to
recall the order dated 22.11.2013.
2. It is contended by defendant no.2 that, she, being
housewife, is burdened with responsibility of taking care of her children
and other family members. She has undergone knee replacement
surgery and she is staying at Navsari, Gujarat. As she is housewife, she
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has no source of income to contest the present matter and she do not
have contacts in Mumbai enabling her to appoint a Lawyer to represent
her in this Suit. Therefore, due to aforesaid difficulties, she was unable
to appoint a lawyer to represent her in the present matter.
3. It is further contended that, she do not recollect whether
writ of summons were served on her. She diligently searched in her
residence for writ of summons but she could not found the same.
Hence, she presumed that, the writ of summons is not served upon her.
4. It is further contended that, as per family arrangements,
husband of plaintiff was given family house situated at Maroli, Gujarat
in the year 1986 and the defendant no.1 was given the suit flat. It is her
contention that, all the brothers and sisters have released their rights in
the suit flat in favour of defendant no.1 and defendant no.1 has also
paid an amount of Rs.3,25,000/ to deceased Bipinchandra Shah
towards relinquishing his right in the suit flat. It is contended that, the
defendant no.1 have good case on merits and therefore, she may be
allowed to defend the Suit by filing Written Statement.
5. The Motion is opposed by plaintiff by filing reply. It is
contended by the plaintiff that, the defendant cited medical reason
without filing any medical certificate and no sufficient reasons are
assigned by her to condone the delay. Hence, the plaintiff prayed for
rejection of the Motion.
6. Heard both sides. Perused Motion, reply as well as entire
proceedings. The plaintiff filed service affidavit which shows that the
defendant no.2 was served with writ of summons on 1.11.2012.
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Inspite of service, defendant no.2 failed to appear and therefore, suit
proceeded exparte. Hence, the contention of defendant no.2 that, she
presumed that she was not served with writ of summons cannot be
accepted. Although, defendant no.2 contended that due to her ill
health and she has no source of income, she could not contest the Suit,
but she has not cited any reason of filing the aforesaid Motion all of a
sudden after a period of almost eight years when the suit is at the stage
of recording of evidence. The defendant further did not file single
document to justify the delay in tendering the Written Statement.
Moreover, her case is supporting the case of defendant no.1 and in her
affidavit in support, she is contending that defendant no.1 is having
good case on merits. The aforesaid conduct clearly shows that, the
defendant no.2 has filed instant Motion at the behest of defendant no.1.
7. It further appears to me that, the defendant no.2 drafted
the Motion in anticipation that she will be allowed to file Written
Statement without showing sufficient reasons and without proving the
delay in filing the Written Statement.
8. I have also perused the defence of defendant no.1. It is his
specific defence that, he has paid Rs.3,25,000/ to the husband of the
plaintiff and therefore, her husband relinquished right in the suit flat.
Similar contention is raised by defendant no.2. Thus, I am of the view
that, in the event present Motion is rejected, no prejudice will be caused
to the defendant no.2. Moreover, the defendant no.1 is the only
contesting defendant. Therefore, I am of the view that, defendant no.2
failed to assign any sufficient reason as to what prejudice caused to her
if delay is not condoned. Hence, the notice of motion needs to be
dismissed. Thus, I proceed to pass following order :
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ORDER
1. Notice of Motion No.658/2020 is dismissed.
2. Costs in cause.
3. Notice of Motion is disposed of accordingly.
Sd/
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 26.11.2021 Greater Bombay (CR 03)
Dictated on : 26.11.2021
Typed on : 26.11.2021
Signed on : 27.11.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
29.11.2021 11.45 a m (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD (C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 26/11/2021
JUDGMENT/ORDER signed by P.O. on 27/11/2021
JUDGMENT/ORDER uploaded on 29/11/2021
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