Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1072 OF 2019
(CNR NO.MHCC010028012019)
IN
S. C. SUIT NO.1239 OF 2015
Alka Prakash Agarwal )..Plaintiff
V/s.
Ajay Poonachand Lunia ).. Defendant
Appearances :
Adv. Kunal Dalal for plaintiff.
Adv. Pankaj Pandey for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 29/07/2022.
ORDER
1. This Notice of Motion is filed for condoning the delay and
grant of permission to file written statement and recall the order of
Court dated 05/10/2018. It is the contention of defendant that there is
a delay has been caused for filing the written statement as a notice of
motion was filed by defendant under the provisions of Order 7 Rule 11
of CPC, which came to be disposed off by framing preliminary issue of
territorial jurisdiction. The said issue was proceeded to record the
evidence. Later on, as per the Roznama dated 05/10/2018, due to
failure of defendant to adduce the evidence on preliminary issue, the
evidence of defendants came to be closed and the issue of jurisdiction
ordered to be decided at the time of judgment. Therefore, the defendant
prayed for calling back the order dated 05/10/2018 and allowing the
defendant to file written statement.
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2. The plaintiff has filed reply and resisted the defendant. It
is contended that no case is made out for grant of notice of motion.
Defendant has made vague statements. No delay is properly explained
and prayed for dismissal of notice of motion.
3. Heard both sides. It appears that in consequent to failure
of defendant to adduce the evidence on preliminary issue, this Court
has directed that issue of jurisdiction, which was framed as preliminary
issue, be decided at the time of judgment. Now, provisions of Sec.9(a)
of CPC, came to be deleted. Considering the fact that defendant has an
opportunity to raise the same contention during recording of evidence
and it could be adjudicated at the time of judgment. Therefore, I found
no force in the submission regarding recalling the order dated
05/10/2018.
4. So far as the delay in filing of written statement is
concerned, pendency of notice of motion on issue of preliminary issue is
not a reason of excuses for filing written statement. It was the wrong
presumption of defendant that he can file written statement after the
decision of preliminary issue. It is argued by the Ld. Advocate of
plaintiff that there is no reason assigned to condone the delay and
prayed for heavy costs, in case, defendant is allowed to file the written
statement.
5. Defendant has relied upon the following citations :
(a) Rekha Baburao Parmale & others V/s.
Vishwabhushan Shrikant @ Annaso Patil & others,
2018 SCC OnLine Bom 8790.
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(b) Zolba V/s. Keshao & others, (2008) 11 Supreme
Court Cases 769.
6. In the Judgment of “Rekha Baburao Parmale” (supra) the
Hon'ble Lordship has found correctness in the order of Trial Court in
allowing the defendant to file written statement even no satisfactory
reason was assigned and also having found that the defendant was not
diligent. In the cited case, the Trial Court has allowed to file written
statement as an opportunity to defend case in all fairness.
7. In the cited case of “Zolba V/s. Keshao” (supra), it is held
by the Hon'ble Supreme Court of India that, “The procedure to file
written statement within stipulated period should not be construed in a
manner which would leave the Court helpless to meet extra ordinary
situation in the ends of justice”.
8. Considering the observations in the supra cited cases, I am
of the view that as a fair opportunity should be given to the defendant
to file written statement though, he was not diligent in filing written
statement. However, there should be a cost imposed on the defendant
for causing such in ordinary delay. Consequently, I proceed to pass the
following order :
ORDER
1. Notice of Motion No.1072/2019 in Suit No.1239/2015, is hereby
partly allowed.
2. Delay stands condoned subject to costs of Rs.3,000/ (Rupees
Three Thousand only).
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3. Defendant is permitted to file written statement on record after the
payment of costs.
4. Notice of Motion stands disposed off accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, C.R. No.03
Dated : 29/07/2022 Greater Bombay
Dictated on : 29/07/2022
Typed on : 29/07/2022
Signed on :
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“Certified to be true and correct copy of the original signed order”.
04/08/2022 (Mrs. Vidya Abhijit Mande)
at about 11.30 a.m. Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 29/07/2022
Order signed by Hon'ble Judge on : 30/07/2022
Order uploaded on : 04/08/2022
at about 11.30 a.m.
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