Order 1

Order Details: Notice of Motion
Pdf Text: N/M 840/18 in Su 2193/16 1/3 Date : 20.07.2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CNR No.MHCC010088652016
NOTICE OF MOTION NO.840/2018
IN
SUIT NO.2193/2016
Shri Ayodhya Sarju Shahu ]... Plaintiff
V/s.
1. Shri Nanji Mavji Chheda @ Shah & Ors. ]… Defendants
Adv. Karan Chouhan for plaintiff.
Adv. Ms. Neela Shah for defendants no.1, 4 & 5.
CORAM : HHJ Shri G. R. Agrawal
C. R. No.03
DATE : 20.07.2018
ORDER
(Dictated in open court)
By this motion, the defendants no.1, 4 & 5 are praying for recall
of order dated 10.11.2017 whereby, suit is ordered to proceed without
written statement of defendants no.1, 4 & 5. They have further prayed to
condone the delay of 479 days in filing written statement and for
permission to file the written statement on record. The plaintiff has filed
reply to the motion.
2. Heard Ld. Counsel for the parties and perused the record.
3. It is urged by the Ld. Counsel for the applicants that the defendant
no.1 has filed his affidavit in support of the motion and he has explained
the reasons for the delay in the said affidavit. He submitted that the
delay is not intentional and therefore the applicants be given one more
opportunity to defend the suit on merits.
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N/M 840/18 in Su 2193/16 2/3 Date : 20.07.2018
4. The Ld. Counsel for plaintiff has opposed the prayer on the ground
that the applicants were totally negligent in prosecuting the matter and
there is no explanation whatsoever for condoning the inordinate delay
of about 500 days.
5. As per paragraph no.3 of affidavit filed in support of the motion,
the defendant no.1 has stated that the suit summons were served on
them on 30.9.2016. Then they approached the Advocate and the
Advocate filed vakalatnama on 27.7.2017 in this suit. There is no
whisper as to what transpired during the period 30.9.2016 to
27.7.2017 i.e. period of about 10 months. There is no explanation
whatsoever as to what the defendants no.1, 4 & 5 were doing
during the said period and why vakalatnama was filed 10 months
after service of writ of summons.
6. The applicants have also made a statement in the affidavit that
“on 10.11.2017 the Advocate for defendants no.1, 4 & 5 was in the
Mahabaleshwar Court, therefore, the Junior/trainee of the Advocate for
defendants no.1, 4 & 5 prayed for some time to file the written statement.
However, this Hon'ble Court was pleased to pass “no written statement
order against defendants no.1, 4 & 5...”. A perusal of Roznama dated
10.11.2017 shows that none of the parties or their advocates appeared
on said date. The record and proceedings of this Court are sacrosanct
and a party cannot come after delay of one and half years and state that
it was represented by Advocate, though the Roznama does not reflect
so. This Court cannot go beyond Roznama. It is clear that a false
statement has been made in the affidavit. This reason is sufficient to
reject the present motion.
7. It is no doubt true that the expression “sufficient cause” has to be
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N/M 840/18 in Su 2193/16 3/3 Date : 20.07.2018
construed liberally. However, it is well settled that a party has to make
out a bonafide cause to condone the delay. In the instant case, there is
no cause, much less sufficient cause, to condone the delay of about 500
days in filing this motion. The affidavit is totally silent as to why no
steps were taken from 30.9.2016 to 27.7.2017. In fact, when the
Advocate for defendants no.1, 4 & 5 filed her vakalatnama on
27.7.2017, the time to file written statement had expired long back.
Hence, the averments made in the affidavit are misleading and dis
entitle the defendants no.1, 4 & 5 from being given opportunity to
defend the suit on merits. Hence, following order.
ORDER
Notice of motion no.840/2018 is rejected.
(G. R. Agrawal)
Judge
City Civil Court,
Date : 20.7.2018 Gr. Bombay.
Dictated on : 20.7.2018
Typed on : 24.7.2018
Signed on : 24.7.2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
24.7.2018 at 3.30 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
20.7.2018
JUDGMENT/ORDER signed by
P.O. on
24.7.2018
JUDGMENT/ORDER uploaded
on
24.7.2018
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