Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.945/2019 in L.C.Suit no.1896/16
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 945 OF 2019
(CNR no. MHCC010025042019)
IN
L.C. SUIT NO. 1896 OF 2016
(CNR no. MHCC010076562016)
Mr. Kantilal Rajgore and Anr. ]..Plaintiffs
Versus
Shakuntala Singh and Anr. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 6th March, 2019.
Ms. Neha Pande h/f Mr. A. M. Sarogi, advocate for plaintiff.
Mr. Bharucha with Ms. Aarti Devdhar, advocate for defendant no. 2
None for defendant no. 1
ORDER
1. The defendant no. 2 has taken out this motion seeking to
set aside an order of exparte hearing dated 13.09.2017 passed against
the defendant no. 2 and for leave to file written statement by condoning
delay.
2. Heard, respective advocates. The Ld. Advocate for the
defendant no. 2 submitted that the earlier advocate for the defendant
no. 2 in spite of giving instructions could not file the written statement.
In the meantime the matter was adjourned from time to time and the
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2 NM no.945/2019 in L.C.Suit no.1896/16
impugned order was passed. Thereafter, another advocate was
appointed who unfortunately expired on 03.05.2018, and therefore, the
defendant no. 2 could not take necessary steps to set aside the aforesaid
order and file written statement. According to him in the interest of
justice the delay should be condoned and the defendant no. 2 should be
allowed to file written statement.
3. The Ld. Advocate for plaintiff strongly objected to allow the
motion on the ground that the defendant no. 2 had shown total
negligence in filing the written statement and contesting the suit.
According to her the defendant no. 2 is delaying the hearing of the suit.
Thus, she prayed for dismissal of the motion.
4. Considering the submissions and the record it appears that
the matter was protracted from time to time on one count or the other.
For the mistake of an advocate the parties should not suffer. It is
necessary to allow the defendant no. 2 to file written statement by
condoning the delay, in view of the ratio laid down in the case of
Vimalkumar vs Vinodkumar reported in 1999 (1) Mh. L. J 180 to the
effect that Rule 10 of Order VIII of C.P.C. gives discretion to the Court
and the Court can permit the defendant to file written statement at any
stage prior to pronouncement of the judgment. The prejudice which
may be caused to the plaintiff can be compensated in terms of costs.
Thus, the following order is passed :
ORDER
1. The Notice of Motion no. 945 of 2019 is made absolute in terms
of prayer clause (a) to (d) subject to payment of costs Rs. 5000/
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3 NM no.945/2019 in L.C.Suit no.1896/16
to the plaintiff or to deposit the same in the Court for the said
purpose within a period of two weeks from today.
(Dr. M. S. Deshpande)
Judge,
Date : 06.03.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 06.03.2019
Checked by HHJ on : 07.03.2019
Signed by HHJ on : 07.03.2019
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4 NM no.945/2019 in L.C.Suit no.1896/16
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 07.03.2019 at 3.45 p.m.
NAME OF STENOGRAPHER/TYPIST : Ms. Nilam S. Pandit
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
06/03/2019
JUDGMENT/ORDER signed by
P.O. on
07/03/2019
JUDGMENT/ORDER uploaded
on
07/03/2019
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