Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion No.2197 of 2018
MHCC010021872020
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
NOTICE OF MOTION NO.786 OF 2020.
IN
SHORT CAUSE SUIT No.2197 of 2018.
1.Mr. Niral Manish Shah …Defendant No.1
2.Mrs. Renuka Manish Shah ...Defendant No.2
3. Mr. Manish Kantilal Shah. ...Defendant No.3./
Applicants.
In the matter between
Mrs. Jinal Niral Shah. …Plaintiff.
V/s.
1.Niral Manish Shah and Ors. ...Defendants
Appearance:
Adv. Fauzan i/b Drishti Shah for Plaintiff.
Adv. Feroz Patel a/w Adv. Dimple Vora for defendant Nos. 1 to 3.
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR
(C.R.No.59)
1
-- 1 of 6 --
Order in Notice of Motion No.2197 of 2018
DATE : 20th OCTOBER, 2022.
ORDER
Defendant Nos. 1 to 3 have taken out this Notice of Motion with a
prayer to condone the delay of 441 days in filing written statement and
to take on record their written statement.
2. Ld. advocate for the defendants submitted that defendants
had filed Notice of Motion under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (In short 'CPC') and, therefore, they had not tendered
their written statement. After rejection of the said notice of motion, they
have filed their written Statement along with present Notice of Motion.
The plaintiff had not provided the copy of the audio recording referred
in pleading despite of communication by the defendants. The period of
90 days lapsed on 01.12.2018. Within that period defendants had filed
the Notice of Motion which is decided on 10.11.2020 and on the very
next date, they have taken out the present Notice of Motion. There is
no negligence or deliberate delay on the part of the defendants. Delay is
occasioned due to Notice of Motion filed by them as well as due to
failure of the plaintiff to provide inspection of the audio recording. As
the Notice of Motion under Order VII Rule 11 of the CPC was pending,
the suit would have remained pending, even if, the defendant had filed
their written statement. In the above circumstances, he prayed that the
Notice of Motion be allowed by condoning the delay.
3. In support of his above submissions, Ld. Advocate for
defendants relied upon following authorities:
1. Shoraj Singh V/s. Charan Singh, MANU/SC/1127/2021.
2
-- 2 of 6 --
Order in Notice of Motion No.2197 of 2018
2. Kailash V/s. Nanhku and Others, (2005)4 SCC 480.
3. Sambhaji and Others V/s. Gangabai and Others, (2008)17
SCC 117.
4.R.K. Roja V/s. U.S. Rayudu and Another, (2016)14 SCC 275.
4. Per Contra, the Ld. advocate for the plaintiff submitted that
defendants have not filed their written statement with the present
Notice of Motion. Supporting affidavit is filed by defendant No.1 on
behalf of the defendant Nos. 1 to 3. There is no authority produced in
favour of the defendant No.1 by other defendants to depose on their
behalf. Defendants could prepare written statement without inspection
of the audio recording. Therefore, they could have also prepared and
filed their written statement at the initial stage itself. Defendants did
not approach the Court for order of inspection. The cause given by
defendants is not sufficient to explain the delay. Therefore, he urged
that notice of motion be rejected.
5. Perused the Notice of Motion, supporting affidavit and
affidavit in reply. So far as the objection of Ld. advocate for the plaintiff
regarding non submission of written statement by defendants along
with this Notice of Motion is concerned, I have perused the record in
the presence of both the sides. On perusal of the record, it reveals that
defendant Nos.1 to 3 have tendered written statement along with
Notice of Motion and the same is available in the Court.
6. It is argued on behalf of the defendants that if Notice of
Motion or application is filed under Order VII Rule 11 of the CPC, it is
3
-- 3 of 6 --
Order in Notice of Motion No.2197 of 2018
not necessary for defendant to file written statement till the decision of
the said Notice of Motion or application. In the case of R.K. Roja V/s.
U.S. Rayudu and Another (supra), the Hon'ble Apex Court has held
that if application under Section Order VII Rule 11 of the CPC is filed
the Court cannot proceed with the trial. In para No.5, the Hon'ble Apex
Court has observed as under :
5. Once an application is filed under Order VII Rule 11
CPC, the Court has to dispose of the same before proceeding
with the trial. There is no point or sense in proceeding with the
trial of the case, in case the plaint (election petition in the
present case) is only to be rejected at the threshold. Therefore,
the defendant is entitled to file the application for rejection
before filing his written statement. In case the application is
rejected, the defendant is entitled to file his written statement
thereafter (see Saleem Bhai v. State of Maharashtra). But once
an application for rejection is filed, the Court has to dispose of
the same before proceeding with the trial.
7. In other judgments relied upon by the Ld. advocate for the
defendants, it is held that the period mentioned in Order VIII Rule 1 of
the CPC is directory and not mandatory, and if, sufficient cause is made
out, the written statement after expiry of the said period can be taken
on record.
8. In the present case, it is the matter of record that Notice of
Motion under Order VII Rule 11 of the CPC was taken out by the
defendants after service of writ of summons. The said Notice of Motion
is decided on 10.11.2020. The observations in R.K. Roja V/s. U.S.
Rayudu and Another (supra) are squarely applicable to the facts of the
present case. In these circumstances, even if, the reason that plaintiff
failed to give inspection of the audio recording in respect of transcript
4
-- 4 of 6 --
Order in Notice of Motion No.2197 of 2018
referred in the plaint is not quite acceptable, in view of the above
judgement of the Hon'ble Supreme Court, the delay in the present case
can be condoned and the written statement of defendant Nos.1 to 3 can
be taken on record. Therefore, following order is passed:
ORDER
1. Notice of Motion No.786 of 2020 is made absolute in
terms of prayer clause (a)
2. Notice of Motion No.786 of 2020 is disposed of accordingly.
.
(S.B. Pawar)
Judge,
Dated: 20/10/2022 City Civil and Sessions Court,
Greater Bombay (CR 59)
Declared on : 20.10.2022
Dictated On : 20.10.2022
Transcribed on : 03.11.2022
Checked on : 03.11.2022.
Signed on : 04.11.2022.
Declared on : 20.10.2022
Direct Typed on : 20.10.2022
Checked on : 21.10.2022.
Signed on : 31.10.2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.11.2022 at 2.30 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 20.10.2022
5
-- 5 of 6 --
Order in Notice of Motion No.2197 of 2018
Order signed by P.O. on 04.11.2022
order uploaded on 04.11.2022
6
-- 6 of 6 --