Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1090-19 in S.C.Suit no.875-15
1 Date :08.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1090 OF 2019
IN
S.C. SUIT NO. 875 OF 2015
(CNR NO.MHCC010028172019 )
Smt. Meena Alton Salian .. Plaintiff
Versus
Smt. Kavita B. Jadhav & Ors. .. Defendants
Appearances :
Adv.Suraj Kudalkar for plaintiff.
Adv.Adv.Bal Patil a/w Adv.Abdul Shaikh for defendant no.2.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 08.01.2020
ORDER
1. The defendant no. 2 has filed instant Notice of Motion for
allowing him to file Written Statement.
2. It is contended by the defendant no. 2 that on 01.04.2015 he
has received a letter enclosing with the copy of plaint alongwith
Notice of Motion through Registered Post from the Advocate of
plaintiff. Accordingly, on 06.04.2015 he has appeared through his
advocate and opposed Notice of Motion.
3. It is submitted by the defendant no. 2 that till today he has
not been served with the original writ of summons calling him to
file Written Statement neither this Court has passed any order to
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file Written Statement by the defendant no. 2. Thus, his right to
file Written Statement is still in existence. It is contended by the
defendant no. 2 that he be allowed to file Written Statement in the
interest of justice and if such permission is not granted serious and
irreparable harm and injury would be caused to him.
4. The Notice of Motion is opposed by the plaintiff by filing say.
It is contended by the plaintiff that the defendant no. 2 although
served with the copy of plaint failed to file Written Statement
without any sufficient cause. The defendant was served with the
summons for Notice of Motion as well as copy of plaint therefore,
that would amounting to service of writ of summons and no
separate writ of summons is required. The plaintiff in support of
his contention relied on the judgment of Hon’ble Bombay High
Court in case of Mr. Suresh S/o. Daduram Abnave V/s.
Municipal Corporation of Gr. Bombay passed in Appeal from
order No. 807 of 2011. Thus, the plaintiff denied the right of
defendant to file Written Statement. Hence, plaintiff prayed for
rejection of Notice of Motion.
5. Heard both the sides. Perused Notice of Motion and reply. It
is the specific contention of the defendant that he has not been
served with the suit summons, although he has been served with
copy of plaint. Thus, as per Order VIII Rule 1, he has not been
called upon to file his Written Statement. Hence, period of
limitation of 30 days shall not commenced and he has right to file
Written Statement. In support of his submission, defendant relied
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on the following judgments of Hon’ble Bombay High Court :
1. Tardeo Properties Pvt. Ltd. V/s. Bank of Baroda
reported in 2007(5) Bom.C.R.557.
2. Somnath Gokuldas Zete Shirodkar & Anr. V/s.
Atchut Roghunath Zete Shirodkar & Anr. reported in
2010(Suppl) ALL MR 251.
6. Per Contra plaintiff relied on the judgment of Single Bench
of Hon’ble Bombay High Court in case of Mr. Suresh S/o.
Daduram Abnave V/s. Municipal Corporation of Gr. Bombay,
wherein it is held by Hon’ble High Court that, the defendant is
served with the miscellaneous applications and defendant
appeared in the same, the said service is sufficient for all purposes
and no separate writ of summons is required to be issued.
7. In the present case the plaintiff did not file original writ of
summons. However, defendant no. 2 admitted that he has been
served with the plaint copy. The defendant no. 2 further on
06.04.1995 filed one application for adjournment which is not
been marked as exhibit. Therefore, it is marked as Exh. 5. In the
aforesaid application, the defendant no. 2 have specifically
mentioned that on 04.04.2015 he has been served with the
summons and he sought time to engage lawyer. The aforesaid fact
goes to show that the defendant no. 2 was duly served with the
suit summons, although there is no other proof of service of writ of
summons.
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8. I have perused the Judgment of Hon’ble Bombay High Court
in case of Mr. Suresh S/o. Daduram Abnave V/s. Municipal
Corporation of Gr. Bombay. In the aforesaid case, the Notice of
Motion No. 844 of 2011 has been relodged by the plaintiff after
registration. Prior to that writ of summons was served upon the
defendant. However, after relodging of Notice of Motion, the
defendant claimed that they should be served with the fresh writ
summons. Hence, the Hon’ble High Court in such contingency at
para No. 10 held as under :
“Admittedly the contesting respondents were duly served
and recorded also in the roznama accordingly. The parties
represented through their Advocates. The vakalatnama,
therefore, once filed by the Advocate and / or if the Advocate
appears on behalf of the respective parties, the vakalatnama
cannot be dissected and / or treated for filing only for Notice of
Motion and not for any other proceedings. Considering the
provisions so recorded above once the party appears through his
advocate and due vakalatnama is filed, it is for all the
proceedings. Therefore, to say that a separate summons
required to be served to the respondents / defendants is
unacceptable. No fresh service of writ of summons is
contemplated in such circumstances. The advocate’s
appearance, not permitted for want of specific provision and /
or instruction for a part of the proceeding arising out of th suit.
The vakalatnama cannot be conditional and restricted to any
part of the proceedings. The learned Judge, therefore, in my
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view, wrong in dismissing the suit for want of service of writ of
summons.
9. The Hon’ble High Court further in its para no. 12 thus, held
as under :
“The filing of vakalatnama and / or appearance of the
parties through Advocate, in my view, amounts to service
of summons for all the purposes. The time to file written
statement within 30 days, from the date of appearance /
service of summons, in given facts and circumstances,
requires to be considered by the Court basically when the
suit was not registered for want of delay and / or for
other such circumstances. The submission that the fresh
writ of summons should be served even after service of
summons and though parties appeared through Advocate
in Notice of Motion and / or interim application, is
unacceptable as that would cause greate injustice and
hardship to the plaintiff and / or the parties one who has
already served the defendants / other parties though at
the interim stage and / or Notice of Motion stage. There
is no question of issuing fresh notice and / or multiple
notices and / or services of warrant of summons at every
stage of the pending legal proceedings. There is no
provisions for engaging an advocate in respect of each
and every stage of the proceeding separately. Neither it
is contemplated in any of the provisions so quoted above.
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10. The Hon’ble High Court in the above matter held that time to
file Written Statement within 30 days from the date of
appearance / service of summons in a given facts and
circumstances required to be considered by the Court basically
when the suit was not registered for want of delay and / or for
other such circumstances. In the fact of the above judgment, it
appears that once the writ of summons is issued and it was duly
served, but after relodging no fresh service of writ of summons is
issued. Hence, the Hon’ble High Court held that in such
contingency, there is no necessity of issuance of fresh writ of
summons. In the present case, on perusal of the application dated
06.04.2015, wherein defendant no. 2 himself admitted that on
04.04.2015 he has been served with the summons, in my view, the
period of limitation would start from 04.04.2015 in the present
case.
11. I have also perused the judgment of Division Bench
Judgment of Hon’ble High Court in case of Tardeo Properties
Pvt. Ltd. V/s. Bank of Baroda reported in 2007(5)
Bom.C.R.557. In the aforesaid case, the trial Court passed decree
of specific performance as per Order VIII Rule 10 of CPC. The
Hon’ble High Court by setting aside the decree held that there is
no proof of service of writ of summons as required under Original
Side Rule of Hon’ble High Court. There is no doubt that Original
Side Rule of Hon’ble High Court and Rule of City Civil Court are
para materia in respect of service of summons. But, in my humble
opinion, the aforesaid judgment is not applicable in present case
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for a reason that in the aforesaid case there was no service of writ
of summons. As I have already observed that the defendant no. 2
specifically admitted by the application Exh.6 that he has been
served with the summons on 04.04.2015 that itself is sufficient to
conclude that the defendant was duly served with the summons.
Hence, no fresh writ of summons would be required.
12. In view of the above discussion, it appears to me that there is
a huge delay on the part of defendant no. 2 to file instant Notice of
Motion as well as there is no prayer for condonation of delay. But,
it appears to me that on the legal advice given to the defendant no.
2, he is under impression that his right to file Written Statement
would subsist. In my view, the defendant duly contested the
earlier interim proceedings and at present is also interested in
contesting the suit. In my view, no person would delay to exercise
its own right. Hence, looking to the aforesaid situation, in my
view, the delay if any, in filing Written Statement needs to be
condoned although no specific prayer for condonation of delay.
Looking to the prayer clause 2 of the Notice of Motion. such relief
needs to be granted in the interest of justice and the defendant no.
2 is allowed to file Written Statement on record. The
inconvenience caused to the plaintiff can be compensated by
awarding reasonable cost of Rs. 2,000/. Thus, I proceed to pass
the following order :
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ORDER
1. Notice of Motion No. 1090 of 2019 is hereby allowed in
terms of prayer clause 1 and 2 subject to payment of cost of
Rs. 2,000/ by the defendant to the plaintiff.
2. After payment of the aforesaid cost defendant no. 2 is hereby
allowed to file Written Statement on record.
3. Defendants to bear cost of Notice of Motion.
4. Notice of Motion No. 1090 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 08.01.2020 Greater Bombay.
Dictated on : 08.01.2020
Typed on : 08.01.2020
Draft Submitted on : 08.01.2020
Checked on : 15.01.2020
Signed on : 15.01.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
15/01/2020 at 5.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
08/01/2020
JUDGMENT/ORDER signed by P.O.
on
15/01/2020
JUDGMENT/ORDER uploaded on 15/01/2020
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