Interim Order 1

Order Details: Notice of Motion
Pdf Text: NM 4278/18 in SU 450/18 .. 1 .. Order
CNR No. MHCC01142202018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4278 OF 2018
IN
SUIT NO. 450 OF 2018
Sayeed Abdul Rahman Khan ...Plaintiff.
V/s.
Samiullah Abdul Rahman Khan ...Defendant.
Appearances:
Learned Adv. Mr. Mishra I/b Bhagwan Mishra & Associates for plaintiff.
Learned Adv. Mr. Pradeep Ramchandani for defendant.
CORAM : HIS HONOUR JUDGE
SHRI M.M. SYED.
(C.R.No.04)
DATED : 04th July, 2019.
: ORAL ORDER :
1. Here is the Notice of motion is taken out by the defendant
seeking permission to file the written statement and to condone the
delay for 50 days in filing the written statement.
2. According to the defendant, he is resident of Malegaon, Nashik
and in the second week of September 2018, he came to Mumbai with
help of his friend and engaged the present Advocate and tendered copy
of summons and plaint and his Advocate advised him to bring certain
documents and also informed that written statement was to be filed
within 30 days. He assured his Advocate to come alongwith the
documents. However, since 15.09.2018, he was suffering from stress
induced IBS and advised bed rest till 07.10.2018 and, therefore, he was
unable to come to Mumbai to meet his Advocate. After recovery from
the health, he gave documents to his Advocate to prepare the written
statement. However, his Advocate informed him that there is delay of
50 days from 10.09.2018 in filing written statement. Therefore, he filed
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NM 4278/18 in SU 450/18 .. 2 .. Order
the present Notice of Motion. The defendant has also filed the affidavit
in support of application as well as xerox copy of medical certificate
issued by Dr. Vyankatesh Zhanvar dated 30.10.2018.
3. The plaintiff resisted the application by filing reply and denied
the contention raised in the application as well as in the affidavit in
support of Notice of Motion. It was contended by the plaintiff that when
the defendant was suffering from stress induced IBS from 15.09.2018
and he was advised to take bed rest till 07.10.2018 only then, why he
could not file his reply in between intervening period though, the
summons were served upon him on 11.08.2018. Therefore, story put
forth by defendant is baseless. Therefore, the plaintiff prayed to reject
the application.
4. Heard learned Advocate for the defendant and learned Advocate
for the plaintiff, at length.
5. Admittedly, the summons are served upon the defendant on
11.08.2018 and present application came to be filed on 22.11.2018..
There will be no dispute that the defendant can file his written
statement within 30 days, from the receipt of summons and, therefore,
if the period of 30 days is excluded, it can be said that the delay bas
been caused to the extent of 3 months (102 days), but not 50 days as
contended by the defendant or claim by the defendant.
6. So far as, the story about ill health of the defendant as well as the
Doctor advised him to take the rest till 07.10.2018, certainly not
strongly disputed by the plaintiff. However, he contended that the
defendant did not explain the delay about rest of the period excluding
his illness.
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NM 4278/18 in SU 450/18 .. 3 .. Order
7. It is well settled law that in the matter of condonation of delay,
the Court should keep liberal approach and to avoid the multiplicity in
the litigation, at the most, the opposite party can be compensated by
awarding cost.
8. Thus, considering the length of delay in filing the written
statement and illness period of the defendant, I am of the view that one
opportunity must be given to the defendant to defend the suit on
merits. Therefore, the delay caused in filing the written statement for
102 days deserves to be condoned on certain cost. Hence, I pass the
following order.
: O R D E R :
1. The Notice of Motion No. 4278 of 2018 is
hereby allowed.
2. The delay in filing the written statement is
hereby condoned, subject to payment of costs of
Rs.1000/ to be paid to the plaintiff.
3. Costs be paid on or before next date.
4. It appears that the defendant has already filed
the written statement on record and hence, it be taken
on record and exhibited, after payment of costs.
5. Accordingly, Notice of Motion is disposed off.
(M.M. SYED)
Judge, (C.R.No.4)
Date : 04.07.2019. City Civil Court, Gr. Mumbai
Dictated on : 04.07.2019.
Transcribed on : 04.07.2019.
Signed on : 04.07.2019.
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NM 4278/18 in SU 450/18 .. 4 .. Order
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08.07.2019, at 01.34 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri M.M. SYED
Court Room No.4
Date of Pronouncement of Judgment/order 04.07.2019.
Judgment/order signed by P.O. on 04.07.2019.
Judgment/order uploaded on 08.07.2019.
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