Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO.1087/2020
MHCC010030772020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1087 OF 2020
IN
S.C.SUIT NO.4141 OF 2013
Nisha Hiro Mulani. ...Plaintiff.
Versus
Mahesh Damumal Mulani & Ors. … Defendants.
Advocates
P.S. Tiwari for the plaintiff.
R.S. Tripathi for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
COURT NO.2
DATED : 4th January 2022.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of defendant no.4 for condonation of delay in filing his written
statement and permission to file written statement on the record.
2. Contention of advocate for defendants is that defendant no.4
has filed L.C. Suit No. 4340/2013 and plaintiff has also filed L.C. Suit
No.4141/2013. Both suits were pending in Court No.11. In this suit,
plaintiff has joined defendant no.1 to 3. Defendant no.4 already
narrated entire facts in suit no.4340/2013 and after hearing both
-- 1 of 5 --
ORDER ..2.. NM NO.1087/2020
parties, ad-interim order is passed in favour of defendant no.4.
Defendant no.1 and 2 filed their written statement. Then plaintiff had
taken out chamber summons for other reliefs and adding defendant
no.4 in this suit. Present suit is transferred to this Court from Court
No.11. Writ of summons is not served on defendant no.4. At the time of
filing of this suit, no cause of action arose against defendant no.4. No
prejudice would be cause to the plaintiff as the plaintiff and defendant
no.1 and 2 are fully aware that husband of the plaintiff has executed
documents in respect of the suit stall in favour of defendant no.4. Hence
he prayed for allowing the notice of motion.
3. Contention of advocate for the plaintiff is that plaintiff has taken
out chamber summons no.488/2015 to join defendant no.4 in the
present suit. Said chamber summons was allowed on 10.08.2015.
Amended copy of plaint is served on defendant no.4 but after passing
of about 6 years, defendant no.4 failed and neglected to file his written
statement. Defendant no.4 has not given any reason for delay in filing
written statement. Hence he prayed for dismissal of notice of motion
with heavy costs.
4. Though advocate for the plaintiff opposed the notice of motion
by filing reply but orally submitted that considering delay of more than
6 years, present notice of motion may be allowed subject to heavy costs.
5. Perused the notice of motion alongwith affidavit, reply of the
plaintiff and proceedings of the case.
6. From the perusal of record, it appears that plaintiff had taken
out chamber summons no.488/2015 for amendment by adding
-- 2 of 5 --
ORDER ..3.. NM NO.1087/2020
defendant no.4 in the present suit. Said chamber summons was allowed
on 10.08.2015. Thereafter matter was referred to Mediation by
consent of the parties. Mediation is failed. Then by application
(Exh.16), plaintiff withdrawn the suit against defendant no.3/ BMC.
Hence the suit is assigned to this Court.
7. Though advocate for defendant no.4 submitted that writ of
summons is not served on defendant no.4 after amendment of the
plaint but it appears that present advocate on record was and is
representing defendant no.1, 2 and 4 since 2015.
8. Main contention of advocate for defendant no.4 as appears from
the affidavit in support of notice of motion is that plaintiff has filed L.C.
Suit No.4141/2013 (present suit). Defendant no.4 already filed suit
no.4340/2013. Defendant no.4 narrated all the material facts in suit
no.4340/2013. As both cross suits were pending in the same Court
no.11, defendant no.4 has not filed the written statement.
9. This Court is not convinced with the reasons mentioned in the
present notice of motion for condoning the delay in filing written
statement of defendant no.4. However advocate for the plaintiff
submitted that notice of motion may be allowed subject to heavy costs.
10. According to '
audi alteram partem', a rule of natural justice, no
person should be judged without a fair hearing in which each party is
given the opportunity to respond to the evidence against them. It
appears that defendant no.4 is the only contesting defendant. He filed
suit no.4340/2013 against the plaintiff and his contentions is already on
the record in the nature of cross suit. Under the facts and
-- 3 of 5 --
ORDER ..4.. NM NO.1087/2020
circumstances, no prejudice would be cause to the plaintiff if notice of
motion is allowed. So far as delay in filing written statement of
defendant no.4 is concerned, plaintiff can be compensated in terms of
money. Hence notice of motion is liable to be allowed subject to heavy
costs. In the result, this Court proceeds to pass following order .
ORDER
(1) Notice of motion no.1087/2020 is allowed in terms of prayer
clause (a) and (b) subject to cost of Rs.10,000/- to be paid to the
plaintiff on or before next date.
(2) After payment of costs, written statement of defendant no.4 be
taken on record and mark as exhibit.
(3) Notice of motion no. 1087/2020 is disposed of accordingly.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 04.01.2022
Typed on : 04.01.2022
HHJ signed on : 04.01.2022
-- 4 of 5 --
ORDER ..5.. NM NO.1087/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 04.01.2022, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
04.01.2022
JUDGMENT/ORDER signed by P.O.
on
04.01.2022
JUDGMENT/ORDER uploaded on 04.01.2022
-- 5 of 5 --