Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1038/19 in Suit 210/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1038/2019
(CNR No.MHCC010026962019)
IN
S.C. SUIT NO. 210/2018
Smt. Kanchan Ramesh Gorule ..Plaintiff
V/s.
Mr. Santuram Shamrao Kalvekatte(Balu) ..Defendant
Appearance:
Adv. Mr. Sushil Sharma for plaintiff.
Adv. Ms. Renuka Kaveria for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 7.12.2019.
COMMON ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
of Mr. Santuram S. Kalvekatte. I have also perused affidavit in reply
filed on behalf of the plaintiff duly verified by the plaintiff Smt.
Kanchan Gorule.
2. I have heard oral submissions of Ld. Counsels for both
sides.
3. It is submitted on behalf of the defendant that, the
defendant had put his appearance in the case through his advocate on
4.6.2018 by filing V.P and matter was adjourned on 27.8.2018 for filing
WS by the defendant.
4. It is submitted that, in the meanwhile, through cousin sister
of defendant– Mrs. Naguli Bhogulkar, the defendant had tried to settled
the matter amicably with the plaintiff and there were efforts on his part
for compromise. It is submitted that, initially, the plaintiff was ready to
settle the matter but suddenly the plaintiff had turned down the
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proposal of compromise by the end of September 2018. Therefore, the
defendant contacted his advocate in the second week of October
regarding filing of the WS and gave instruction to prepare WS.
Accordingly, WS was prepared finally by advocate in the first week of
November. Thereafter there was Diwali Vacation. Therefore, WS could
not be filed in time. The defendant is entitled to be given an
opportunity by condoning the delay and permission to file WS on record
by setting aside No WS order dated 27.8.2018 so as to enable him to
defend his case.
5. Per contra, Ld.Counsel for the plaintiff has strongly opposed
the Motion and relied on the affidavit in reply and submitted that, the
defendant is seeking setting aside the No WS order dated 27.8.2018.
But, as per amended provisions of CPC, Court has no power to condone
the delay. Hence, no WS order cannot be set aside. Under the above
circumstances, the Motion is liable to be dismissed with costs.
6. It is further submitted by Ld. Counsel for the plaintiff that,
the defendant has appeared in the case through advocate by filing VP
on 4.6.2018. Thereafter, matter was adjourned for filing WS on
27.8.2018. But, the defendant has failed to submit WS within time.
Hence, it is submitted that, there is no substance in the Motion and
hence, it is liable to be dismissed.
7. I have gone through the Motion and supporting affidavit as
well as affidavit in reply and taken in to consideration oral submissions
made by Ld. Counsels for both sides. It is clear from the record that,
there has been substantial delay in filing the WS by the defendant for
the reasons stated in the Motion and supporting affidavit. However, as
per settled legal position, this Court has discretionary powers to
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condone the delay, subject to suitable costs. Therefore, I am of the view
that, the delay of 175 days can be condoned in the interest of justice.
Hence, I proceed to pass following order :
ORDER
Notice of Motion No.1038/2019 is hereby allowed and
made absolute in following terms:
1. The 'no WS' order passed by this court dated 27.08.2018
shall stand set aside on the defendant paying costs of Rs.
2,000/ to the plaintiff/depositing the same within two
weeks from today in the Court.
2. If the costs are paid/deposited, as directed above, as per
order in N/M No.1012/19 passed today, on compliance of
the same order also the WS filed by the defendant shall be
taken on record.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date:7.12.2019 Gr. Bombay (C.R. 03)
Dictated on :7.12.2019
Typed on : 7.12.2019
Signed by HHJ on : 9.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 10.12.19
TIME: 11.30 am (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 7.12.19
Judgment/ order signed by P.O on 9.12.19
Judgment/ order uploaded on 10.12.19
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