Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010021882019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.774 OF 2011
IN
LONG CAUSE SUIT NO. 2255 OF 2011
Smt. Asha Sudhir Bhagat ... Plaintiff
V/s.
1. The Mumbai Municipal Corporation & Anr. ...Defendants
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI ( C.R.NO.06)
DATE : 01/12/2021
Adv. Mr.R. K. Yadav for the plaintiff.
Adv. Ms.Deepali Patil for the defendant.
ORAL ORDER
1. This Notice of Motion is taken out by the Municipal
Corporation /defendant to set aside hearing without written statement
order and permission to file written statement.
2. The plaintiff has filed reply to the same and strongly
opposed the notice of motion.
-- 1 of 4 --
2 N/M No. 774/2019
3. Perused the notice of motion and reply of the plaintiff.
Heard advocates for the parties at the length.
4. It is contended by the defendants that it was unable to file
its written statement in time due to heavy work load being a public
body. Therefore , delay was caused for filing written statement.
5. The defendants intend to file their written statement by
getting set aside hearing without Written Statement order passed
against it. The question is whether these defendants should be allowed
to file their written statement at this stage.
6. The procedure as to limit for filing written statement and
consequences of not filing the same are given in Order 8 of Civil
Procedure Code. Order 8 Rule 10 of the C.P.C., has laid down a
procedure about passing of a decree in favour of the plaintiffs, if
defendants fail to file his written statement. This discretion is not
exercised by the court in favour of the plaintiffs for the reason of failure
of defendants to file their written statement.
7. In this background, if the defendants are allowed to file
their written statement by setting aside hearing without written
statement order passed against him, it will not cause any prejudice to
either plaintiff or to the overall hearing of this suit. If these defendants
is allowed to file written statement and if the suit decreed in favour of
the plaintiffs, it would be a decree on merit. On the other hand, if the
defendants are not allowed to file their written statement, it would
result into a decree which would be technically exparte decree.
Therefore, this court is of the opinion that evidence of the plaintiff has
not commenced and therefore, defendants should be allowed to file
-- 2 of 4 --
3 N/M No. 774/2019
their written statement in order to enable this court to decide the suit
on merit.
8. There is one more reasonable important point that the
written statement is filed after the period of 90 days of the service of
summons/notice. The written statement along with this application is
being filed after the period of 90 days. However, this court is of the
opinion that for the stated reasons the defendants are to be allowed to
file their written statement. Filing of written statement by this
defendants beyond the prescribed period of time framed has not caused
any serious prejudice to the plaintiff. Hence, the order.
ORDER
1. The Notice of Motion No.774/2019 is allowed.
2. No written statement order passed against the
defendants is set aside and defendants are granted
permission to file their written statement in the interest of
justice .
3. The Notice of Motion No.774/2019 is disposed off.
(Smt. S.G.Shaikh)
Date01.12.2021 Judge,City Civil Court,
Gr.Mumbai.
Dictated on : 01/12/2021
Typed on : 01/12/2021
Signed on :
-- 3 of 4 --
4 N/M No. 774/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
01/12/2021 05.30 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
01/12/2021
JUDGMENT/ORDER signed by
P.O.on
01/12/2021
JUDGMENT/ORDER uploaded on 01/12/2021
-- 4 of 4 --