Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.660/2019 ..1.. Suit No.9781/1991
CNR No.MHCC01
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.660 OF 2019
IN
SUIT NO.9781 OF 1991
Mr. Naeemudin Shamsuddin Khan .. Applicant
In the Matter Between
Yasmeen Amir Bux d/o Amir Rahim
Bux Shaikh and Others .. Plaintiffs
Versus
Haji Mohammed Oomer s/o Haji
Inayatulla Qureshi and Others .. Defendants
Abbas Zaidi, advocate for plaintiffs
Pramod Bhosle, advocate for defendant No.3
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 11th April, 2019
ORAL ORDER
Notice of motion is taken out for taking on record Additional
Written Statement dated 11.02.2018 of defendant No.3 and for framing
additional issues.
2. It is the contention of defendant No.3 that he had preferred
chamber summons No.2225 of 2013 to implead him as party defendant
and said chamber summons was allowed vide order dated 13.09.2014.
Plaintiffs carried out amendment in November, 2014 in cause title of
the plaint incorporating the name of defendant No.3. Thereafter, matter
was adjourned from time to time. It was posted on 18.03.2015 for
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filing written statement. But, defendant no.3 failed to file written
statement so matter was proceeded without his written statement. In
pursuance of order dated 05.12.2018 passed by Hon'ble High Court in
writ petition No.1704 of 2018 defendant No.3 was permitted to file
written statement subject to payment of costs of Rs.20,000/ to the
plaintiffs. Accordingly, defendant No.3 filed his written statement on
18.12.2018 (Original written statement dated 20.08.2016). Plaintiffs
have amended plaint on 06.03.2018. But matter was not placed for
filing additional written statement of defendant no.3 and written
statement of defendant No.3 himself was not on record on 06.03.2018.
It is further contended that when order dated 05.12.2018 permitting
defendant No.3 to file written statement was passed, it was in relation
to written statement which was already affirmed on 20.08.2016. Even
though, written statement was filed on 18.12.2018 but it was written
statement of dated 20.08.2016. In above circumstances, it is contended
that defendant no.3 did not get an opportunity to file additional written
statement in relation to amendments made in plaint. Accordingly,
defendant no.3 has sought permission to file additional written
statement.
3. During course of argument learned advocate for defendant no.3
has not pressed for grant of relief relating to framing of additional
issues at this stage. So, contention made by defendant no.3 in relation
to said prayer is not mentioned herein.
4. Plaintiffs filed affidavit of reply to notice of motion and resisted
prayer for grant of permission to file additional written statement. It is
contended that defendant no.3 was served with amended copy of plaint
on 10th April, 2018. He was permitted to file his written statement in
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pursuance of order dated 05.12.2018 passed by Hon'ble High Court in
Writ Petition No.1704 of 2018 and he has filed his written statement on
18.12.2018. Defendant No.3 has waived and/or abandoned his right to
deal with amended portion of the plaint which was carried out on
20.03.2018. No case is made out by defendant no.3 to permit him to
file additional written statement now. In above facts, it is prayed that
notice of motion be dismissed.
5. Heard respective counsel for parties. They advanced their
argument in accordance with respective contention made by parties.
6. There is no dispute that suit proceeded without written
statement against the defendant No.3 in pursuance of order dated
18.03.2015. As per roznama plaintiffs have amended plaint on
20.03.2018 in pursuance of order dated 06.03.2018 of Hon'ble High
Court in Writ Petition No.8848 of 2017. It is also not in dispute that
Hon'ble High Court vide order dated 05.12.2018 in Writ Petition
No.1704 of 2018 has permitted defendant No.3 to file his written
statement on or before 22.12.2018 and defendant no.3 filed his written
statement vide Exh.4 on 18.12.2018. Thus, it is clear that written
statement has been filed by defendant no.3 after about more than eight
months of carrying out of amendment by the plaintiffs. So he in his
written statement filed vide Exh.4 ought to have dealt with every
allegation of fact in plaint including amended pleadings. Contention of
defendant No.3 that matter ought to have been posted for filing his
additional written statement after carrying out amendment by the
plaintiffs did not arise because at that time there was no written
statement of defendant no.3 on record and order of this court dated
18.03.2015 of no written statement against him was in existence.
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7. I have gone through written statement Exh.4 filed by defendant
no.3. It bears date 26.10.2016. It is not duly verified as per Order VI
Rule 15 of CPC. Defendant no.3 is at liberty to take appropriate
proceeding for rectifying said error. It seems that defendant No.3
hurriedly filed written statement which was already prepared in the
year 2016. So possibility cannot be ruled out that for same reason he
does not deal with amendments carried out in plaint on 20.03.2018. It
seems that defendant No.3 was under impression that permission
granted to him to file written statement by Hon'ble High Court relate to
draft of written statement of 2016. This impression is totally
misconceived. It appears that there is also fault on the part of advocate
of defendant No.3 in that regard. For that reason, party should not
suffer. Defendant No.3 must get an opportunity to deal with contention
raised by way of amendments carried out in plaint on 20.03.2018 and
to contest matter on merits in the interest of justice and fair trial. In the
facts of matter it cannot be said that defendant No.3 forfeited his right
to give reply by additional written statement to the pleadings made by
way of amendment which was carried out in plaint on 20.03.2018.
Therefore, in the interest of justice and fair trial I am inclined to give an
opportunity to defendant No.3 to file additional written statement in
relation to amendment carried out in plaint on 20.03.2018. However,
considering the conduct of defendant no.3 it is necessary to impose
certain costs upon him. Hence, pass following order.
ORDER
1. Notice of Motion No.660 of 2019 is partly allowed subject to
payment of costs of Rs.5,000/ to plaintiffs within period of one week
from the date of this order. Defendant No.3 is at liberty to deposit
costs payable to plaintiffs in the Court.
2. On deposit of costs by defendant No.3 in above terms he is
permitted to file his additional written statement in relation to
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amendment carried out in plaint on 20.03.2018 within period of two
weeks therefrom.
3. Accordingly, notice of motion stands disposed off.
(M. T. Asim)
Judge
Date : 11.04.2019 Gr. Bombay
Typed on : 11.04.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15.04.2019, 3.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
11.04.2019
JUDGMENT/ORDER signed by P.O.
on
12.04.2019
JUDGMENT/ORDER uploaded on 15.04.2019
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