Interim Order 1

Order Details: Notice of Motion
Pdf Text: DRAFT NM L.C. Suit No. 987/2019
MHCC01-002886-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 987 OF 2019
(CNR NO. : MHCC01-002886-2019)
Nagesh Chandrakant Naik )
Aged 48 years, Occu. Business, )
Indian Inhabitant, R/at-A-1, )
Ground/Floor, 31 Khestrpaleshwar )
CHS, Maharshi Valmiki Marg,60 Ft. )
Road, Matunga, Labour Camp R.P. )
Nagar, Matunga Mumbai – 19 )….Plaintiff
V/s.
Municipal Corporation of Greater Mumbai )
a local statutory body having its office at )
Mahapalika Building, Opp. C.S.T. Railway )
Station, Fort, Mumbai – 400 001 )....Defendant
APPEARANCE:-
Ld. Adv. Mr. Madan Singh Khati for the plaintiff.
Ld. Adv. Mrs. Meena Dhuri for the defendant/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT.C. P. JAIN (C.R.NO.06)
DATED : 04th FEBRUARY, 2021.
O R D E R
This Draft Notice of Motion is taken out by
defendant/MCGM praying to set aside the order dated 11.02.2020 &
permit it to file its reply cum written statement.
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2. In the affidavit filed in support of Notice of Motion, it is
averred by defendant that defendant being statutory and public body
and a vast organization, due to heavy workload this defendant failed to
file the written statement in time. Defendant was required to take
instructions from different departments and it was not possible to get
the draft of written statement approved within stipulated time.
Defendant has very good case and unless this defendant files the
written statement, the correct facts and legal position will not be
pointed out to the court. Defendant therefore prayed to allow its notice
of motion.
3. Plaintiff has resisted the aforesaid notice of motion by
filing his reply. Plaintiff prayed for costs.
4. Heard both the learned advocates and perused the
proceeding. Both learned advocates have argued in lines of the
pleadings in the notice of motion and reply filed on record.
5. I have given anxious consideration to arguments of both
the learned advocates. At the outset, it is not in dispute that in order to
condone delay, defendant has to make out sufficient cause. What is
sufficient cause has been explained in the citation of
Balwant Singh
(Dead) V/s. Jagdish Singh and others reported in (2010) 8 SCC 685.
Liberal construction of the expression “sufficient cause” is intended to
advance substantial justice which itself presupposes no negligence or
inaction on the part of the applicant, to whom want of bonafides is
imputable. The expression “sufficient cause” implies the presence of
legal and adequate reasons. The word “sufficient” means adequate
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enough, as much as may be necessary to answer the purpose intended.
It embraces no more than that which provides a plentitude which,
when done, suffices to accomplish the purpose intended in the light of
existing circumstances and when viewed from the reasonable standard
of practical and cautious men. The sufficient cause should be such as it
would persuade the court, in exercise of its judicial discretion, to treat
the delay as an excusable one. The party should show that besides
acting bonafide, it had taken all possible steps within its power and
control and had approached the court without any unnecessary delay.
The test is whether or not a cause is sufficient to see whether it could
have been avoided by the party by the exercise of due case and
attention.
6. In light of aforesaid legal pronouncement, it needs to be
seen as to whether defendant has made out sufficient cause for
condoning the delay or whether plaintiff has succeeded in bringing on
record inaction, negligence, malafides on part of defendant, to reject
the notice of motion of defendant.
7. Defendant has affirmed on oath the reasons for which
delay is caused in filing written statement. According to him, defendant
being statutory and public body and a vast organization, due to heavy
workload this defendant failed to file the written statement in time.
Defendant was required to take instructions from different departments
and it was not possible to get the draft of written statement approved
within stipulated time. For aforesaid reasons, there is delay which is
unintentional and not deliberate.
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DRAFT NM ..4.. L.C. Suit No. 987/2019
8. Defendant has made out reasons in their notice of motion
as to why it could not file written statement within time. As no doubt is
created in aforesaid reasons, it can be safely said that defendant has
made out sufficient cause to condone the delay. No inaction, negligence
or malafides are pointed out by plaintiff. Therefore, Defendant has
made out sufficient cause can be concluded.
9. The observations in the cited case of
R.N. Jadi & Brothers
V/s. Subhashchandra reported in (2007) 6 SCC 420 further come to
aid of defendants in which it is observed that, Procedural law is
handmaid of justice. In an adversarial system, no party should
ordinarily be denied the opportunity of participating in the process of
justice dispensation. Unless compelled by express and specific language
of the statute, the provisions of CPC or any other procedural enactment
ought not to be constructed in an manner which would leave the court
helpless to meet extraordinary situations in the ends of justice.
Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice.
10. There is no affidavit of service tendered on record. No
doubt defendant BMC had appeared in notice of motion. But there is
nothing on record that defendant BMC has waived service of writ of
summons. Considering the fact that defendant is statutory body, and
there being no affidavit of service of writ of summons, defendant BMC
needs to be given benefit.
11. For aforesaid discussion and Order 8 Rule 1 of CPC being
directory in nature, suit needs to be decided on merits by giving
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opportunity to defendant. Therefore, notice of motion of defendant
deserves to be allowed on costs. Therefore, I proceed to pass following
order.
ORDER
1. Draft Notice of Motion is hereby allowed subject to costs of
Rs.300 (Rs.Three Hundred Only), to be paid by
defendant/MCGM to plaintiff on or before next date.
2. Upon depositing the costs as per clause (1) of this order, the
order dated 11.02.2020 passed against defendant/MCGM
shall stand set aside so also the delay caused in filing reply cum
written statement shall stand condoned and the reply cum
written statement tendered on record by defendant/MCGM
shall be taken on record.
3. Draft Notice of Motion is accordingly disposed of.
4. Draft Notice of Motion be registered for statistical purposes.
(SMT C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date :04.02.2021 City Civil Court, Gr. Bombay
Dictated on com : 04.02.2021.
Checked on : 05.02.2021.
Signed on : 05.02.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.02.2021, 05.22 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
04.02.2021
JUDGMENT/ORDER signed by P.O.
on
05.02.2021
JUDGMENT/ORDER uploaded on 05.02.2021
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