Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 638/18 in Suit 1889/16
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.638/2018
(CNR No.MHCC010024432018)
IN
S.C. SUIT NO. 1889/2016
Mrs. Manju Anil Mishra ..Plaintiff
V/s.
Mrs. Richa Tiwari Mishra ..Defendant
Appearance:
Ld. Adv. Mr. Prashant Gupta for plaintiff.
Ld. Adv. Ms. Nilima Sarvagod for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 8.1.2020.
ORAL ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
of defendant Richa Tiwari Mishra, along with documents. I have also
perused affidavit in reply filed by plaintiff to the N/M sworn by Mr.
Aakarshak Mishra, Constituted Attorney (CA) of the plaintiff.
2. Heard Ld. Counsels for the defendant and plaintiff
respectively on the N/M.
3. It is submitted on behalf of the defendant that the
defendant was served with writ of summons on or about in the month
of December' 2016, however Counsel for the defendant had not
received copy of the plaint along with documents. Therefore, matter
was kept for compliance by the plaintiff. In the meanwhile, when the
Counsel for the defendant was absent on 24.7.2017, the Court had
passed an order to proceed exparte against defendant without WS on
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record. As advocate for the defendant was absent when the above order
was passed, he could not point out to the court that the case was kept
for compliance by the plaintiff. When Counsel for the defendant
realized above fact, he applied for certified copy of the plaint on
15.11.2017 and received the same on 22.11.2017 and thereafter, he has
taken steps in the matter for setting aside the exparte order/ order to
proceed against defendant without WS on record. The mistake on the
part of advocate for the defendant is bonafide mistake and not
deliberate or intentional. The defendant is a widow having minor son.
No harm will be caused, if the N/M is allowed by this court by
condoning the delay of 180 days approximately. However, if the N/M is
not allowed then it will cause irreparable loss and harm to the
defendant, which cannot be compensated in terms of money. Hence,
N/M deserves to be allowed.
4. Per contra, Ld. Counsel for the plaintiff has strongly
opposed the Motion and relied on the affidavit in reply filed on record
and submitted that, the grounds stated in the Motion are not proper
and correct; same are not supported by record. Writ of summons was
served on the defendant before 16.12.2016 when advocate for the
defendant was present. Advocate for the plaintiff had also served copy
of plaint on the defendant on the same day, but paper of
acknowledgment was misplaced and therefore, matter was kept for
compliance. It is submitted that, as the defendant and her Counsel
were absent on 24.7.2017, this Court had passed an order to proceed
exparte without WS on record. There has been substantial delay of
more than six month, which is not properly explained by the defendant.
The delay comes to around 300 and above days. Under the above
circumstances, the same is not liable to be condoned and N/M is
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without any merit and it deserves to be dismissed.
5. After going through the contents of supporting affidavit
along with N/M and affidavit in reply filed on behalf of the plaintiff and
after taking into consideration oral submissions made by Ld. Counsels
for both sides, I am of the opinion that, there is delay of more than six
months in taking out the present N/M for setting aside exparte/ no WS
order passed by this Court. The defendant appears to be a widow,
having a minor son and the delay caused do not appear to be on her
part. On the contrary, the delay appears to be on the part of advocate
for the defendant, who could not attend the mater on the date fixed. As
per Roznama, copy of which is filed on record, on 23.2.2017 the matter
was kept for compliance and it was adjourned to 18.4.2017 and
thereafter to 24.7.2017 when the order to proceed exparte against the
defendant without WS came to be passed. Thus, it can be seen that the
Counsel for the defendant was not aware that his absence before the
court will result in passing of any adverse order against defendant.
6. Under the above circumstances, I am of the opinion that, it
will be just and proper to give the defendant an opportunity to submit
WS on record by setting aside the exparte order/ order to proceed
without WS on record, subject to some reasonable costs. Hence, I
proceed to pass following order:
ORDER
Notice of Motion No.638/2018 is hereby allowed and
made absolute in following terms:
1. Order passed by this Court dated 24.07.2017 to proceed
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exparte/ without WS of the defendant on record shall
stand set aside subject to defendant paying costs of
Rs.3,000/ to the plaintiff/ depositing the same in the
court within four weeks from today.
2. If the above direction is complied by the defendant, then
the WS of the defendant shall be taken on record.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 8.1.2020 Gr. Bombay (C.R. 03)
Dictated on : 8.1.2020
Transcribed on : 8.1.2020
Signed by HHJ on : 9.1.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 10.1.2020
TIME: 2.00 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 8.1.2020
Judgment/ order signed by P.O on 9.1.2020
Judgment/ order uploaded on 10.1.2020
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