Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 711 OF 2019
(CNR NO. MH CC01-001848-2019)
IN
S.C.SUIT NO. 776 OF 2018
Smt. Pratibha Subash Ghumare].. Plaintiff.
V/s.
1. Shri Pyarelal Mataru ]
Vishwakarma and others ]..Defendants.
Advocate Mr. Arvind Taral for the plaintiff.
Advocate Mr. Pradosh Tiwari h/f Advocate Mr. Ashutosh Shukla for
defendant No.1.
Advocate Mr. Trivedi for No.3/MHADA.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 7th FEBRUARY 2023
ORAL ORDER
This Notice of Motion has been taken out by the defendant
No.1 for condonation of delay and for allowing to file written statement
on record.
2. The defendant No.1 has filed affidavit in support of Notice
of Motion, wherein he has stated that when the writ of summons of the
present suit alleged to have been served upon the defendant No.1 in the
month of April, the defendant No.1 was at his native place to attend
marriage ceremony of his son. He came to know about the suit filed
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against him and other defendants. Thereafter his advocate has prepared
written statement as per instruction of the plaintiff.
3. It is further submitted that in the meantime, he has
received urgent call from his native place about the serious illness of his
elder brother’s wife and she died on 30.09.2019 at native place.
Therefore, delay occurred in filing written statement. Hence, prayed for
allowing Notice of Motion.
4. The Constituted Attorney of the plaintiff has filed reply to
the Notice of Motion and raised strong objection and denied the
contents of the Affidavit. It is submitted that the defendant No.1 has
fully known about the suit filed by the plaintiff and refused to accept
the service inspite of intimation given by the postal authority. There is
delay of more than 198 days. The defendant No.1 has failed and
neglected to make out any grounds to condone the delay. Hence, it is
prayed for dismissal of the Notice of Motion.
5. Heard the learned advocates for the defendant Nos.1 and 3
and the learned advocate for the plaintiff at length.
6. Read Notice of Motion, affidavit, reply and plaint. Perusing
documents on record, it appears that the plaintiff has filed this suit for
declaration and injunction. The writ of summons is served in the month
of April 2018. The defendants would have filed his written statement
within 30 days from the date of of service of writ of summons. It
appears that the defendants have not filed his written statement within
time. But it also appears that the defendant filed this Notice of Motion
on 20.02.2019 for condonation of delay. The delay is not intentional. If
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this Notice of Motion is allowed no prejudice would be caused to the
plaintiff.
7. The learned advocate for the defendant No.1 has relied
upon the Judgments in the case of (1) Zolba V/s. Keshao and others
reported in (2008)11 S.C.C. 769 and (2) Shaikh Salim Haji Abdul
Khayumsab reported in 2006(1) Bom.C.R.57. The said citations are
applicable to the facts of the present case.
6. Considering the reasons mentioned in the Notice of Motion,
it is acceptable, but considering the nature of the suit, the opportunity
should be given to defendant No.1 to take written statement on record
and to decide the suit and real controversial issues between the parties
on merits. Therefore, to avoid further complication and multiplicity of
the proceedings, at this stage, it will just and proper to condone the
delay and bring on record written statement. No doubt, there is delay
on the part of defendant No.1 and it caused delay in the suit, it can be
compensated in terms of money. Therefore, I am inclined to condone
the delay for accepting written statement subject to the payment of
costs. Thus, notice of motion is to be allowed by imposing heavy costs
upon defendant No.1. With this, I proceed to pass the following order:-
ORDER
1. Notice of Motion No.711 of 2019 is hereby
allowed subject to the payment of costs of Rs.1500/-
(Rupees One Thousand Five Hundred only) payable
by the defendant No.1 to the plaintiff on or before
next date.
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2. On payment of costs, delay be condoned and
allowed to file written statement of defendant No.1
for taking on record on or before next date.
3. Failure to make compliance, Notice of Motion will
be dismissed automatically.
4. Notice of Motion No.711 of 2019 is disposed of
accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 07/02/2023 Gr. Bombay.
Dictated on : 07/02/2023
Transcribed on : 07/02/2023
Signed on : 07/02/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08/02/2023 At 4.50 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
07/02/2023
Judgment/Order signed by P.O. on 07/02/2023
Judgment/Order uploaded on 08/02/2023
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