Final Order 1

Order Details: Other
Pdf Text: 23.04.2019
SU 2554/18
@ Ch/s
567/19 @
NM 3929/18
@ NM
1223/19
Exh.5
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Satale for Plaintiff present.
Adv. Rajapurkar for Defendant nos.1 and 2 present.
He tendered original NM No.1223/19 t.o.r.
Adv. Ranjana Chodankar for defendant no.3 present.
Plff tendered original Ch/s no.567/19 t.o.r.
Additional affidavit in support of NM filed by
K.B. L.O.
Order below Notice of Motion No.1223/19.
Read Notice of motion and affidavit in support of it, reply of Plaintiff.
Heard respective counsel for parties.
Notice of motion is taken out for condoning the delay caused in filing written statement on the count that matter
was captioned for hearing of notice of motion and not captioned for suit, so act of waiver of service of writ of
summons has been completely skipped out of the mind of defendant nos.1 and 2 and their Advocates. Therefore,
these defendants could not file written statement within period of 30 days. Accordingly, defendant nos.1 and 2
made prayer in above terms.
Plaintiff opposed notice of motion on the count that no specific reason given for condoning the delay and reason
assigned is not satisfactory.
On perusal of record, it appears that defendant nos.1 and 2 waived the service of summons on 12.12.2018. They
failed to file written statement within 30 days from the date when they waived service of summons. They have
attributed to themselves and their Advocate about forgetfulness of service of writ of summons as one of the
reasons for delay caused in filing written statement. They have also assigned reason about engaged in
simultaneous proceedings. I am of the view that for technical reasons the defendants should not be deprived from
contesting the suit on merits. Moreso, delay caused is not inordinate and it cannot be said that it is deliberate.
Further, defendant nos.1 and 2 have already filed written statement alongwith notice of motion which show
bonafide on their part. Therefore, in the interest of justice and fair trial, I am inclined to condone delay caused in
filing written statement by defendant nos.1 and 2. Hence, pass following order.
ORDER
1. Notice of Motion No.1223 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to
payment of costs of Rs.1,000/- to the plaintiff within period of one week. Defendant nos.1 and 2 are at
liberty to deposit costs payable to Plaintiff in Court.
2. On payment of costs by Defendant nos.1 and 2, written statement filed by them be marked exhibit and
taken on record.
Accordingly, NM is disposed off.
Costs paid to the Adv for Plaintiff.
Ex.5 Written statement filed by defendant nos.1 and 2.
Order below notice of motion no.3929 of 2018.
Read Notice of motion, affidavit in support of it and reply of defendants.
Heard respective counsel for parties.
Adv for Plaintiff submitted that in view of reply to notice of motion, in para 19 and 22, defendant nos.1 and 2
have made certain statements that they do not have any intention to carry out any work of permanent nature or
changing the original structure and frame work and further made statement that they have no intention to change
the structure or transfer it, status quo order can be passed against the defendant nos.1 and 2 and motion can be
disposed off in view of status quo order. He further submitted that at present Plaintiff is not seeking any relief
against defendant no.3.
Adv for defendant nos.1 and 2 fairly conceded that in view of statement made by defendant nos.1 and 2 in para 19
and 22 of their reply, these defendants have no quarrel for grant of status quo. In above circumstances, following
order is passed.
ORDER
1. Defendant nos.1 and 2 are directed to maintain status quo in relation to the suit premises in pursuance to
their statement made in para 19 and 22 of their reply as pointed above.
2. Defendant nos.1 and 2 are directed to take colour photographs of suit premises showing structure of suit
premises from within and outside the suit premises to cover whole area of suit premises alongwith front
and back portion and upper roof portion within period of three days from date of order and file those
photographs alongwith affidavit of concerned photographer within period of one week from date of taking
photographs.
3. In above terms notice of motion no.3929/18 is allowed and disposed off.
Adj for reply on Ch/s 567/19 and for compliance to 04.07.2019.
Judge
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