Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.8142020 IN SUIT No.15502016
MHCC010022342020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 814 OF 2020
IN
SUIT NO. 1550 OF 2016
Mr. Ulhas Ramakant Javeri ] ...Plaintiff.
Versus
The Executive Engineer and Others ]…Defendants.
Appearance:
Ld. Advocate Kalpesh Nancy for defendant no.3.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 13/7/2022
ORAL ORDER
1) Defendant No.3 has taken out present Notice of Motion for
setting aside no W/S order dtd. 8/1/2020 and for taking written statement
of defendant No.3 on record and to condone delay if any taking out notice
of motion.
2) Perused the notice of motion, affidavit in support of notice of
motion and record. From the record it appears that in spite of just
opportunity plaintiff failed to file reply to the present notice of motion.
Heard arguments advanced by Ld Advocate for defendant No.3. As plaintiff
and his advocate were absent they could not be heard.
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2 NM No.8142020 IN SUIT No. 15502016
3) From the record it appears that defendant No.3 had appeared
in the present suit on 26/7/16 and since then matter was adjourned for
reply and for hearing of notice of motion No.2742/16. It also appears that
notice of motion No.2742/16 was dismissed in default on 1/7/19 and
thereafter matter was adjourned for proof of service of writ of
summons/written statement of defendants. It appears that in spite of same
plaintiff had not filed affidavit of service of writ of summons and matter
was adjourned for written statement of defendants on 8/1/2020. From the
record it appears that on 8/1/2020 as per the request of Advocate for
defendant No.3 matter was kept back and thereafter, order to proceed
without written statement against defendant No.3 was passed. Thus, from
the affidavit in support of notice of motion there appears substance in the
contention of defendant No.3 that writ of summons was not served to him.
Plaintiff has not challenged the contention of defendant No.3 in the
affidavit in support of notice of motion and therefore, there is nothing on
record so as to disbelieve the cause stated therein for non filing of written
statement earlier. Therefore, there appear substance in the contention of
defendant No.3 that till date writ of summons is not served to defendant
No.3 and on 8/1/2020 defendant No.3's written statement was ready.
Therefore, from the affidavit in support of notice of motion it appears that
defendant No.3 has demonstrated just and exceptional cause for non filing
of written statement earlier, for condonation of delay and for setting aside
the no WS order dtd.8/1/2020.
4) Considering the matter on record and nature of the suit in
order to give fair opportunity to the defendant No.3 to contest the suit it
will be appropriate to set aside order dtd.8/1/2020 to proceed without WS
of defendant No.3 and to condone the delay in filing written statement and
to take the written statement of defendant No.3 on record. Therefore, Ld
Advocate for defendant No.3 submitted that notice of motion deserves to be
made absolute. Hence, court proceeds to pass the following order:
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3 NM No.8142020 IN SUIT No. 15502016
ORDER
1) Notice of Motion No.814 of 2020 is made absolute.
2) Written Statement of defendant No.3 be taken on record if tendered on
or before next date.
3) Notice of Motion No.814 of 2020 is disposed off accordingly.
Date : 13/7/2022 (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on :13/7/2022.
Checked on : 14/7/2022.
Corrected & signed on :16/7/2022.
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4 NM No.8142020 IN SUIT No. 15502016
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/7/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
13/7/2022
JUDGMENT/ORDER signed by P.O.
on
16/7/2022
JUDGMENT/ORDER uploaded on 18/7/2022
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