Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1246/2019 L.C. Suit No.1634/2008
MHCC01-003198-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1246 OF 2019
(CNR NO. : MHCC01-003198-2019)
IN
L.C. SUIT NO. 1634 OF 2008
Mr. Yashwant S/o. Narayan More )
of Bombay, Adult, Indian Inhabitant, )
residing at Room No.3, Mistry Chawl, )
Dadar (W), Mumbai – 400 028 . )….Plaintiff
Versus
1. The Mumbai Municipal Corporation, )
a Body corporation incorporated under the )
provisions of BMC Act having its office )
at Mahapalika Bhavan, Mahapalika Marg, )
Mumbai – 400 001. )
2. Madhav Nagar Co-op. Housing Society )
Ltd., a Society incorporated under the )
provions of Maharashtra Co-operative )
Societies Act, having its office at )
Bhavani Shankar Road, Dadar (West), )
Mumbai – 400 028. )....Defendants
APPEARANCE:-
Ld. Adv. Mr. Ashok Singh h/f Adv. A.M. Saraogi for the plaintiff.
Ld. Adv. Mrs. Dipali Patil for the defendant No.1/MCGM
Ld. Adv. Ajit Kocharekar for the defendant No.2.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C. P. JAIN (C.R.NO.06)
DATED : 1st MARCH, 2021.
O R D E R
Read Notice of Motion, Reply filed by plaintiff, rejonder of
defendant No.2. Heard both the learned advocates.
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2. This Notice of Motion is taken out by defendant No.2
praying to condone the delay caused in filing written statement and to
permit it to file his written statement on record.
3. In the affidavit filed in support of Notice of Motion, the
main thrust of defendant No.2 is that writ of summons was not served
upon him. He had appeared through his advocate and contested the
notice of motion. Therefore, there is no limitation for filing notice of
motion. If plaintiff had taken steps for service of writ of summons,
defendant No.2 would have filed his written statement. His written
statement was ready on 02.03.2019. Delay is not deliberate and
intetional.
4. In rebuttal learned advocate for plaintiff has relied upon
the observations in the case of
Mr. Suresh Daduram Abnave V/s.
Mumbai Municipal Corporation of Greater Mumbai in Appeal from
Order No.807/2011 decided on 23.10.2013. In this cited case it is
observed in Paragraph-12 as follows -
“The filing of vakalatnama and/or appearance of the parties
through advocate, in my view, amounts to service of summons
for all the purpose. The time to file written statement within 30
days, from the date of appearance/service of summons, in given
facts and circumstances, requires to be considered by the Court
basically when the suit was not registered for want of delay
and/or for other such circumstances. The submission that the
fresh writ of summons should be served even after service of
summons and though parties appeared through advocate in
Notice of Motion and/or interim application, is unacceptable as
what would cause great injustice and hardship to the plaintiff
and/or the parties one who has already served the
Defendants/other parties though at the interim stage and/or
Notice of Motion Stage. There is no question of issuing fresh
notice and/or multiple notices and/or services of warrant of
summons at every stage of the pending legal proeedings. There
is no provision for engaging an Advocate in respect of each and
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every stage of the proceeding separately. Neither it is
contemplated in any of the provisions so quoted above”
5. In light of aforesaid observations, the submission of
learned advocate for defendant that writ of summons was not served to
defendant No.2 do not hold water. Defendant No.2 had appeared
through his advocate and contested the notice of motion. According to
defendant No.2 his written statement was ready. Therefore, in light of
aforesaid observations, it was incumbent upon defendant No.2 to file
the written statement on record. Therefore, there is delay in filing
written statement on record.
6. In the case of
R.N. Jadi & Brothers V/s. Subhashchandra
reported in (2007) 6 SCC 420 it is observed that, Procedural law is
handmaid of justice. In an adversarial system, no party should
ordinarily be denied the opportunity of participating in the process of
justice dispensation. Unless compelled by express and specific language
of the statute, the provisions of CPC or any other procedural enactment
ought not to be constructed in an manner which would leave the court
helpless to meet extraordinary situations in the ends of justice.
Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice.
7. Order 8 Rule 1 of CPC is directory in nature. It is always in
the interest of justice and parties that the suit is decided on merits.
Denying opportunity to defendant No.2 to file his written statement
and contest the suit will lead to multiplicity of proceedings. Suit needs
to be decided on merits by giving opportunity to defendant. Therefore,
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notice of motion of defendant deserves to be allowed on costs.
Therefore, I proceed to pass following order.
ORDER
1. Notice of Motion No.1246/2019 is hereby allowed subject to
costs of Rs.2,000/- (Rs. Two Thousand Only), to be paid by
defendant No.2 to plaintiff on or before next date.
2. Upon depositing the costs as per clause (1) of this order, the
delay caused in filing its written statement shall stand
condoned and the written statement tendered on record by
defendant No.2 shall be taken on record.
3. Notice of Motion No.1246/2019 is accordingly disposed of.
(SMT C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date :01.03.2021 City Civil Court, Gr. Bombay
Dictated on com : 01.03.2021.
Checked on : 03.03.2021.
Signed on : 03.03.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.03.2021, 11.54 am.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
01.03.2021
JUDGMENT/ORDER signed by P.O.
on
03.03.2021
JUDGMENT/ORDER uploaded on 05.03.2021
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