Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 924 OF 2018
IN
L.C. SUIT NO. 2897 OF 2013
(CNR NO. MHCCO10031452018)
Rohini Anand Ubale )...Plaintiff.
Versus
The Municipal Corporation of )
Greater Mumbai & Ors. )...Defendants.
Appearance:
Advocate Mr. Shukla for plaintiff.
Advocate Mr.Sutar for defendant/MMC.
Advocate Mr.Balkrishna S. Shetty for defendant no.3.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 02nd AUGUST,2019.
(C.R.No.06)
O R D E R
The present notice of motion is taken out by the defendant
no. 3 Shri Sandeep Shravan Ubale for setting aside No W.S. Order
passed on 17/03/2016 and allow him to file his written statement and
reply. This notice of motion resisted on behalf of the plaintiff by filing
reply. Heard both the Ld. counsels on behalf of both the sides at length.
Read the present notice of motion and reply thereon. Perused the
record.
2. After hearing the arguments advanced on behalf of both
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the sides at length, after careful scrutiny of the present notice of motion
and reply thereon, it appears that on 17/03/2016, No W.S. and No
Reply order has been passed against defendant no.3. The learned
counsel on behalf of defendant no.3 has submitted that the defendant
no. 3 is the real brother of the deceased husband of the plaintiff Rohini
Ubale. There is share of the present defendant no. 3 in the present suit
premises. The real dispute in this present suit in between the plaintiff
and defendant no. 3. The defendant no.3 is the worker and he used to
go to his work anywhere. Therefore, he cold not contact to his advocate
and therefore, he could not file his reply and written statement within
stipulated period.
3. The learned advocate on behalf of defendant no. 3 has
further submitted that there is approximatively delay around two years.
The defendant no. 3 will ready to attend each and every date of the
suit. There is no intension of the defendant no. 3 for prolonging this
suit. On these grounds, the learned advocate on behalf of the
defendant no.3 has requested that present notice of motion of the
defendant no. 3 may kindly be allowed.
4. The learned advocate on behalf of the plaintiff has
submitted that admittedly the plaintiff Rohini Ubale is the wife of real
deceased brother of the present defendant no.3. There is real dispute in
between the plaintiff and defendant no. 3 in respect of the suit premise.
The defendant no.3 was present in this proceeding. Therefore, he very
well known about this proceeding. The defendant no. 3 in order to
prolong the matter intentionally could not file his written statement
within stipulated time. Therefore, defendant no. 3 is not entitled to file
his written statement and his reply. On these grounds, the learned
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advocate on behalf of the plaintiff has requested that the present notice
of motion taken out by the defendant no.3 may kindly be rejected with
costs.
5. On perusal of the record, after hearing of the arguments
advanced on behalf of both the sides at length, it appears that
admittedly, the real dispute in between the plaintiff and the present
defendant no. 3. The other defendants are normally party in the present
suit. The plaintiff has admitted in her affidavit in support of her reply
that the present defendant no. 3 is jobless. Therefore, there is support
to the contention of the present defendant no.3 that he is worker and he
is to go anywhere for doing his job.
6. Considering the main dispute in respect of the suit property
in between the present plaintiff and defendant no.3, considering the
work of the present defendant no.3, if this notice of motion of the
defendant no. 3 is to be allowed, then it will not cause any hardship or
injustice on the part of the plaintiff. The subject matter is the
immovable property. Therefore, it requires to give opportunity to
defendant no. 3 for filing his written statement in order to decide the
matter on merits by imposing costs. Therefore, I am inclined to allow
this notice of motion and proceed to pass the following order.
ORDER
1. Notice of Motion No. 924/18 is hereby allowed as prayed for subject
to cost of Rs.2000/.
2. If the defendant no.3 deposited cost of Rs.2000/, out of this cost
Rs.1,000/ be deposited to the DLSA, Mumbai and Rs. 1000/ pay to the
plaintiff.
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3. Notice of Motion No. 924/18 is disposed of accordingly.
Date : 02/08/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 02/08/2019
Transcribed on: 02/08/2019
Signed by HHJ : 03/08/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
03/08/2019 5.00 p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
02/08/2019
Judgment/order signed by P.O on 03/08/2019
Judgment/order uploaded on 03/08/2019
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