Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 886/2018 SUIT NO.251/2017 1
CNR.NO.MHCC010030412018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.886 OF 2018
IN
S.C.SUIT NO.251 OF 2017
Mr.Sunderlal Sitaram Nirban & Anr. . .. Plaintiffs
Versus
Mr.Ravikumar Rajan Pandayan .. .. Defendant
Shri.Amit Kasabe advocate for the Plaintiffs.
Shri.Rakesh Agrawal advocate for the Defendant.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad Hoc Dist.Judge
CR No. : 32
Date : 13th August 2018
ORDER
1. Defendant taken out this motion for setting aside order of suit
proceeded without written statement dated 05/08/2017 with
condonation of delay of 233 days.
2. The summons was duly served on the defendant but the copy of
plaint along with documents were misplaced by his advocate while
shifting his office. As per the oral direction plaintiff again served the
copy of plaint and documents on the defendant in the last week of July,
but due to short period he could not instructed to his advocate and
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NM 886/2018 SUIT NO.251/2017 2
therefore, his advocate Shri.Amit Kasbe called plaintiffs advocate
Shri.Agrawal early in the morning on 05/08/2017 that due to his
personal difficulty he could not file his written statement that time and
advocate for plaintiff said nothing to worry his junior will take care and
cooperate for the same but on 05/08/2017 the junior advocate of the
plaintiff press for ‘ no w/s’ order hence, ‘no w/s’ order has been passed
against the defendant. It is further contention of the defendant that he
was under the impression that his lawyer had been filed written
statement on 14/11/2017, due to miscommunication delay of 233 days
has been caused, hence, this motion.
3. Defendant prays that delay be condoned and motion be made
absolute.
4. Plaintiff filed the reply. Writ of summons was served on
defendant in July 2017. Plaintiff has specifically denied the
communication dated 05/08/2017. On 05/08/2017 the junior advocate
of plaintiff has rightly press for ‘no w/s’ order. It is denied by the
plaintiff that defendant lost the papers therefore, could not file the
written statement within stipulated period. It is also denied by plaintiff
that defendant was under any impression that his lawyer has filed the
written statement on 14/11/2017. The motion does not reflect as to
how many days of delay according to defendant and written statement
is not submitted along with motion.Motion is nothing but skillful strict
to pronged the matter, hence, motion be dismissed with costs.
5. Heard learned advocate Shri.Amit Kasbe for plaintiff and
advocate Shri.Rakesh Agrawal for plaintiff.
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NM 886/2018 SUIT NO.251/2017 3
6. Before entering into actual merit, in case of Srirang
Dhairyasheel Shirole & others Vs. Deccan Education Society
(2013(1) Mh.L.J.233) . It is held as “courts are required to adopt
liberal approach while acceptance of ‘sufficient cause’ and normally
explanation should be accepted as a rule and rejection thereof should
be in exceptional case”. By keeping well in mind this basic principle, I
will turn towards the factual aspect
7. Writ of summons served on defendant on 03/04/2017. As per
the roznama plaintiff placed the report of service of summons on
defendant on 25/04/2017. Learned advocate Shri.Kushvah was present
for defendant on 23/06/2017 and 17/07/2017. It is not the case that
defendant avoided to appear before the court and after passing the
order they appeared and therefore, their intention was to protract the
matter. The suit is for recovery of Rs.6,68,920/ with interest @ 18%
p.a. Considering the nature of the suit, opportunity must be given to the
defendants to put up their case before the court.
8. Order 8 Rule 1 of Civil Procedure Code is procedural and
directory in nature. Basic object of incorporation of order 8 Rule 1 is to
curb mischief laid by unscrupulous litigants who caused delay in
disposal of cases. Departure from time schedule is permissible in case
when it is required to prevent injustice to the other side.
9. In view of the above discussion, if the delay is condoned by
imposing a cost of Rs.3000/ be paid to the plaintiff and allowed the
defendant to put their written statement on record then that will be
justifiable, hence, I pass the following order.
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NM 886/2018 SUIT NO.251/2017 4
ORDER
1. Notice of Motion no. 886/2018 is made absolute
subject to cost of Rs.3000/(Rs.Three thousand only)
be paid to the plaintiff on or before next date.
2. After compliance the order of ‘no w/s’ dated 05/08/2017
be set aside and written statement of defendant
be taken on record.
Date : 13/08/2018 (Pushpa N. Rao)
Ad Hoc Dist.Judge
Bombay City Civil Court
Greater Mumbai
Direct typed on computer : 13/08/2018
Signed by HHJ on : 13/08/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14/08/2018 at ( 5.25p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room No.) HHJ Smt. Pushpa N. Rao
(Court Room no.32)
Date of Pronouncement of JUDGMENT/ORDER 13/08/2018
JUDGMENT/ORDER signed by P.O.on 13/08/2018
JUDGMENT/ ORDER uploaded on 14/08/2018
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