Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.625/2018 in Suit No.1091/2017
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.625 OF 2018
(CNR NO. MH CC010023902018)
IN
S.C.SUIT NO. 1091 OF 2017
(CNR NO. MH CC010042252017)
Mr. Umesh Shymdas Pasi ]
Aged 47 years, Occupation : Service, ]
an adult Indian Inhabitant temporary ]
residing at Room No.502, Building No.4R, ]
Hiranandani, Lallubhai Compound, ]
Warna Society, Mankhurd, ]
Mumbai 400 043. ].. Plaintiff.
V/s.
Mr. Shyamdas Pamman Pasi ]
Age about 72 years, an adult Indian ]
Inhabitant, Occupation : Retired, ]
presently residing at Room No.410, ]
4th floor, Building No.4B, ]
Adash Cooperative Housing Society ]
Limited, Natwar Parekh Compound, ]
Ghatkopar MankhurdLink Road, ]
Next to Indian Oil Nagar, Govandi West, ]
Mumbai 400 043. ]..Defendant.
Advocate Ms. Harsha Shah for the defendant.
Advocate Mr. A. Ansari for the plaintiff.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 7th AUGUST 2018
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2 N/M No.625/2018 in Suit No.1091/2017
ORAL ORDER
This Notice of Motion has been taken out by the defendant
for condonation of delay of seven months in filing written statement
and for taking on record written statement.
2 In support of notice of motion, the defendant has filed
affidavit. It is averred that the plaintiff has filed this suit for declaration
that the plaintiff is coowner of the suit premises and having equal share
in the suit premises and for restoration of possession of the plaintiff in
the suit premises along with other consequential relief.
3 It is further averred that the plaintiff served with the
summons upon the present defendant on 04.05.2017. The defendant is
a senior citizen, aged 72 years. He is having several health issues and
therefore, unable to move out, frequently from the suit premises.
Therefore, after acquaintance of legal proceeding against the present
defendant, he could not approach his present lawyer within the
stipulated time period. He was not aware about the prescribed time
period for filing of written statement. Due to financial constrains, the
defendant could not contact any advocate earlier and he has been
recently come in contact with his present advocate. After the
appropriate guidance from advocate, it was advised to file written
statement.
4 It is further averred that he has a good case on merits. If
his written statement is not taken on record, great harm and prejudice
would be caused to the defendant. Hence, prayed for allowing notice of
motion.
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3 N/M No.625/2018 in Suit No.1091/2017
5 The plaintiff has filed affidavit in reply and contended that
the present notice of motion is taken out for condonation of delay of
seven months whereas, as the defendant was served on 11.05.2017 and
notice of motion was taken on 15.02.2017, it means the actual delay is
about 274 days.
6 It is further contended that the notice of motion is barred
by law of limitation, as the defendant has failed to show sufficient cause
for condonation of delay. Despite attending the matter regularly, the
defendant has failed to file written statement.
7 The plaintiff has denied that the defendant is having
several health issues. Accordingly, after service of summons upon the
defendant, the defendant appeared through advocate Mr. K.I. Mirde on
20.06.2017. The said advocate undertaken to file Vakalatnama. He
was also served with the copy of notice of motion. The plaintiff has
denied the reasons of financial constrains of the defendant. Thus,
prayed for dismissal of notice of motion with heavy costs.
8 Heard the learned advocate for the plaintiff and the learned
advocate for the defendant. It is not in dispute that the defendant is 72
years old and he is the father of the plaintiff. The plaintiff has filed this
suit being coowner of the suit premises, claiming half share in the suit
premises. The defendant in paragraph nos.2 and 3 of his affidavit
stated the reasons for condonation of delay in filing written statement.
One reason has been stated by the defendant is of his health issue.
Considering his age, reason stated in affidavit is believable and
acceptable.
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4 N/M No.625/2018 in Suit No.1091/2017
9 Further, the defendant has stated reason of financial
constrains. It appears that the defendant has stated that he has a good
case on merits. In the facts and circumstances, considering the reasons
stated in paragraph nos.2 and 3 of an affidavit, I hold that the
defendant has shown sufficient cause to condone the delay in filing
written statement.
10 While condoning the delay caused at the hands of the
defendant, the plaintiff is necessary to be compensated in terms of
money, by imposing costs on the defendant, as delay leads to drag the
suit further. Therefore, while allowing notice of motion, it is just and
proper to impose costs upon the defendant. With this, I proceed to pass
the following order:
ORDER
Notice of Motion No.625 of 2018 is made absolute in terms
of prayer clause (a) subject to the payment of costs of Rs.1500/
(Rupees One Thousand Five Hundred only) payable by the defendant
to the plaintiff on or before next date.
2 On payment of costs, already tendered written statement
by the defendant be taken on record.
3 Notice of Motion No.625 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 07/08/2018. City Civil Court,
Gr. Bombay.
Dictated on : 07/08/2018
Transcribed on : 08/08/2018
Signed on : 10/08/2018
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5 N/M No.625/2018 in Suit No.1091/2017
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16/08/2018 At 3.15 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
07/08/2018
Judgment/Order signed by P.O. on 10/08/2018
Judgment/Order uploaded on 16/08/2018
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