Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 815/2020 in S.C.Suit No. 2243/19. 1 Order.
MHCC010022422020
Presented on : 21-02-2020
Registered on : 21-02-2020
Decided on : 05-01-2024
Duration : 3 years, 10 months, 16 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 815 OF 2020
IN
S. C. SUIT NO. 2243 OF 2019
Santosh Dattaram Indulkar ...Applicant
IN THE MATTER BETWEEN
Girish Govindrao Indulkar ...Plaintiff
Versus
Sudha Dattaram Indulkar and others ...Defendants
Shri Durgesh Kulkarni, Advocate for the defendant no.3.
Shri Ashutosh Khandeparkar, Advocate for the plaintiff.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 5th JANUARY, 2024.
ORDER
1. The defendant no.3 has taken out the notice of motion for
condonation of delay of 110 days in filing the written statement.
2. Perused notice of motion, reply filed by the plaintiff. Heard
both advocates at length.
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N/m No. 815/2020 in S.C.Suit No. 2243/19. 2 Order.
3. The contention of the defendant no.3 that to take search of
the papers pertaining to the title of the suit property, more particularly
Consent Decree dated 20/12/1968, the process of collecting the papers
took substantial amount of time. It is further alleged by the defendant
no.3 that his wife was suffering from breast cancer, so he has to look
after her, therefore delay was caused in filing written statement. Delay
was neither deliberate nor intentional, therefore prayed for condonation
of delay of 110 days.
4. The plaintiff opposed the application on the ground that
defendant no.3 deliberately delayed to file the written statement. There
are other litigations pending between the party, therefore there was no
sufficient cause for filing written statement beyond the period of
limitation. Hence, prayed for rejection of notice of motion.
5. The delay can be condoned if it is brought on record that
there is sufficient cause for not filing written statement within time
limit. If the sufficient cause is shown and if it is found that delay is not
intentional, deliberate and so as to frustrate the claim of the plaintiff,
then delay can be condoned. In case at hand, the contention of the
defendant no.3 that to take search of the papers pertaining to the title
of the suit property, more particularly Consent Decree dated
20/12/1968, the process of collecting the papers took substantial
amount of time. It is further alleged by the defendant no.3 that his wife
was suffering from breast cancer.
6. There is a delay of 110 days in filing written statement. The
contention of defendant no.3 that his wife was admitted in the hospital,
she was suffering from severe disease like cancer. So also to search old
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N/m No. 815/2020 in S.C.Suit No. 2243/19. 3 Order.
document the delay was caused. So, in my opinion, it is just and proper
cause of delay in filing written statement. The record shows that the
delay is not intentional or deliberate. It is nowhere come on record that
by delaying the matter defendants want to cause harm or loss to the
plaintiff. Thus, in my opinion, if delay is not condoned, the defendants
will lose right to contest the suit forever or to protect their legal rights.
On the other hand, if delay is condoned and defendants permitted to
file written statement on record, plaintiff will suffer a loss but it can be
compensated in terms of money. Therefore, in my opinion, delay needs
to be condoned and defendants can be permitted to file written
statement on record subject to some cost. Considering this, I pass
following order :
- ORDER -
1. Prayer clause (a) of Notice of Motion No. 815/2020 is made
absolute subject to cost of Rs.2,000/-.
2. The defendants are directed to pay cost to the plaintiff or deposit
in this court within six weeks from the date of this order, after payment
of cost, written statement be read and recorded.
3. N/m No. 815/2020 is disposed off accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 05/01/2024. Mumbai.
1. Dictated online on : 05/01/2024.
2. Placed for correction on : 06/01/2024.
3. Checked on : 08/01/2024.
4. Correction carried on : 08/01/2024.
5. Signed on : 08/01/2024.
6. Delivered to Certified :
Copy Section on
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N/m No. 815/2020 in S.C.Suit No. 2243/19. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08/01/2024. 6.00 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 05/01/2024.
Judgment/Order signed by P.O. on 08/01/2024.
Judgment/Order uploaded on 08/01/2024.
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