Final Order 1

Order Details: Other
Pdf Text: IN THE COURT OF :COURT 14 ADDL SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0101071/2020
Bharat B. Mehta Vs Mr. Mafatlal M. Mehta
Date : 21082021
Business : Adv. Sanika Gharat for plaintiff present.
Plaintiff present. None for defendant.
ORDER ON N/M NO.1071/20 Defendant
and his counsel are absent. This N/M is
pending since long. Therefore, I shall
proceed to decide it on merits. This N/M is
taken out by defendant praying to condone
delay of 172 days in giving appearance
before the Court. It is submitted by
defendant that he came to know about suit
on 26.01.2020 through common relative.
He had no business relations with plaintiff.
With the help of relative, he could find out
the present suit claim and therefore,
appeared in person before the Court on
28.01.2020. Plaintiff failed to provide copy
of the plaint and other documents. Due to
unavailability of documents, he could not
proceed with the matter. His advocate
contacted plaintiffs advocate through email
and requested him for providing copies of
the plaint and documents. But, plaintiffs
advocate failed to provide copies of the
documents. By making all these
contentions, deft. submitted that there is
delay of 172 days in filing appearance
before the Court. He prayed to condone the
same. Plaintiff by filing reply affidavit
strongly objected the N/M moved by the
deft. It is submitted that deft. deliberately
refused to accept the summons. Therefore,
summons were returned as unclaimed. By
the order dated 04.11.2019, suit proceeded
exparte. Deft. was having ample time to
appear before the Court. Present N/M is
filed in order to delay hearing of the suit.
Deft. has not made out a case for
condonation of delay of 172 days. By
making these submissions, plaintiff prayed
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to dismissed the N/M. Plaintiff has filed on
record service affidavit (Exh.5) on
04.11.2019. Said service affidavit shows
that summons sent to the deft. were
returned as unclaimed. As per the
endorsements on the envelope, intimation
to the addressee was given on 20.09.2019
and 23.09.2019. Thus, as per service
affidavit (Exh.5), summons were not
personally served to the deft. However,
record shows that deft. got knowledge of
the proceedings and he appeared before the
Court on 28.01.2020. Deft. ought to have
filed his appearance as provided in Order
37 Rule 3 subrule (3) of C.P.C. But, record
shows that deft. failed to do so after getting
knowledge of the proceedings also. Deft.
contended that he did not receive plaint
and documents. As stated above, summons
to the deft. were not served personally.
Thus, it can be inferred that deft. did not
get the copies of the plaint and documents
at the time of service of summons.
However, deft. at the time of his
appearance before the Court on 28.01.2020
and 14.02.2020, did not raise this point.
Considering the principles of natural justice
and the fact that summons to the deft. were
not served personally, it would be expedient
to allow the deft. for entering his
appearance before the Court. At the same
time, deft. is required to be saddled with
costs for causing delay in hearing of the
suit. In the result, following order. ORDER
1. N/M No.1071/20 is allowed in terms of
prayer clause (a) subject to payment of
costs of Rs.5,000/ payable to plaintiff till
next date. 2. N/M No.1071/20 is disposed
of accordingly.
Nature of
Disposal
: ALLOWED
Disposal Date : 21082021
COURT 14 ADDL SESSIONS JUDGE
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