Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO.: MHCC010024112020. 1 Notice of Motion No. 903/2020
in L.C. Suit No. 2944/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 903 OF 2020.
IN
L.C. SUIT NO. 2944 OF 2018.
Vishal Brijmohan Mehra. …................................… …. PLAINTIFF.
V/s.
Manmohan Durgadas Mehra and the Others. …… …. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 11th October, 2024.
APPEARANCES :
Mr. S.H. Mishra, Ld. Advocate for the Plaintiff.
Mr. Viraj Sahastrabudhe, Ld. Advocate for Defendant No.1.
Mr. Arvind Rathod, Ld. Advocate for Defendant No. 5/MCGM.
*****
01. Defendant No.1 has taken out this Notice of Motion (for the
brevity the NM), to set aside the Order dtd.17.01.2020, proceeding this
suit without his written statement (the WS) and for the condonation of
delay to place his WS. Perused the NM, his supporting affidavit and the
plaintiff’s say. Heard.
02. Considering the record, the points for determination, along
- with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether defendant No.1 needs to be
permitted to file his WS, by condoning
the delay and setting aside the Order
dtd. 17.01.2020?….......................……. .....Yes.
(2). What Order ? .............…....................... …. As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO. 1 :
03. By this NM, defendant No.1 contended that in view of this
suit, the plaintiff prayed for exhaustive reliefs. However, the suit is false,
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CNR NO.: MHCC010024112020. 2 Notice of Motion No. 903/2020
in L.C. Suit No. 2944/2018.
frivolous and abuse of the process of law. By filing this suit, the plaintiff
prayed that the Declaration dtd. 05.04.1995 and the said relief is devoid
of substance. In 1st week of September, 2019, the papers and proceeding
of this suit were served upon him. Initially, he was under the impression
that it were pertaining to suit No. 2115/2010, filed by the plaintiff and
his father. Later, his advocate was not reachable and after going through
the papers, he realized that the same were pertaining to this suit. In 2nd
week of October, 2019, he contacted his advocate and also briefly stated
about this suit. Then, there was Diwali vacation. Moreover, owing to his
old age and his other medical issues, he could not contact the advocate
and hence, the Order dtd. 17.01.2020 followed. However, he has a good
case on merits and therefore, he may be allowed to contest the matter.
Otherwise, he would suffer irreparably. In reply, the plaintiff contended
that defendant No. 1 didn’t explain this delay satisfactorily and it is the
plaintiff’s responsibility to substantiate his stand at appropriate stage by
leading his side. He also assailed the said declaration of dtd. 05.04.1995
and submitted that it was antedated executed, on the basis of false and
fabricated documents. He also denied that this defendant is having good
case on merits and prayed for dismissal of this NM. Supporting his reply,
he filed the Supplementary Deed of Confirmation dtd. 08.10.2012 and
some newspaper extracts.
04. Considering the rival submissions, at the outset, it is worth
notable that by this suit the plaintiff mainly resisted the Declaration dtd.
05.04.1995 as null and void. He also prayed for the relief of a perpetual
injunction, restraining the defendants from using this Declaration, along
-with the other ancillary reliefs. However, it is the matter of record that
when the matter was posted for filing of his WS, defendant No. 3 failed
to place the same and therefore, the Order of dtd. 17.01.2020 followed.
However, it is equally true that that very shortly, on 28.02.2020, he took
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CNR NO.: MHCC010024112020. 3 Notice of Motion No. 903/2020
in L.C. Suit No. 2944/2018.
out this NM. At this juncture, judicial note can be taken of the fact that
since March, 2020 onward, there was pandemic, when even the Courts
weren’t functioning regularly.More so, the set of reliefs sought in this suit
are having far reaching repercussions. Hence, contest of defendant No.1
is needed to decide the issues effectively. Further, he could satisfactorily
explain the delay. The suit is still at initial stage and the trial is to begin.
Certainly, there are latches on his part. Being so, while considering this
NM, it would be just to impose costs upon him, having delayed the trial.
Hence, I answered point No. 1 in the affirmative and in answer to point
No. 2, I pass the following Order:
-: O R D E R :-
(i). Notice of Motion No. 903/2020 is made absolute in terms
of prayer Clause (a) and (b) only, subject to payment of
costs of Rs. 3,000/-(Rs. Three Thousand), in favour of
the DLSA, Mumbai, positively till the next date.
(ii). On the payment of costs, defendant No. 1 is directed to
file his written statement on record, without further delay.
(ii). Notice of Motion No. 903/2020 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 11.10.2024. City Civil Court, Mumbai.
Dictated on : 11.10.2024.
Transcribed on : 22.10.2024.
Checked and Signed on : 23.10.2024.
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CNR NO.: MHCC010024112020. 4 Notice of Motion No. 903/2020
in L.C. Suit No. 2944/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
23.10.2024. at 12.25 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 11.10.2024
Judgment/Order signed by P.O. on 23.10.2024
Judgment/Order uploaded on 23.10.2024
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