Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1156/2020 L.C. Suit No.2891/2011
CNR No. MHCC01-003218-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1156 OF 2020
IN
L.C. SUIT NO. 2891 OF 2011
Shilpa Suresh Pal )
Age 37 years, Housewife, )
Residing at a Room situated at )
Marwadi Chawl, behind Bus Station )
Dahod, Gujrat )...Applicant
IN THE MATTER OF
Mr. Harkesh Motilal Pal )
Age 54 years, Occupation : Service, )
Residing at BMC Chawl, No.1, )
House -5, Sion-Koliwada, )
Mumbai – 400 022. )...Plaintiff
Vs.
1. The Municipal Corporation of Gr. Mumbai)
Through it’s Legal Department, )
Mahapalika Marg, Mumbai – 400 001 )
2. Municipal Corporation for Greater )
Mumbai “F” Ward, Bhaudaji Road, Matunga)
Mumbai – 400 019 )
3. Mr. Hiralal Surajdin Pal, Deleted as )
Expired on 6th April 2019 and Represented )
by his children being )
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3(a) Daughter Pushpa Hiralal Pal, )
Age 43 years, Married, Housewife, )
Settled in Uttar Pradesh )
(b) Son Amit Hiralal Pal, )
Age 41 years, Occupation Service )
(c) Daughter Deepa Hiralal Pal, )
Age 39 years, Housewife,
(d) Daughter Shilpa Hiralal Pal )
Age 37 years, Housewife, settled )
in Gujrat
)
(e) Son Sumit Hiralal Pal )
Age 35 years, Occupation : Service )
All having address at Room No.5, )
BMC Chawl No.1, Near Rupam Cinema )
Sion-Koliwada, Sion (East), )
Mumbai – 400 022 )
Presently residing at Flat No.1104, )
‘C’ Wing Shiv Koliwada C.H.S. Ltd., )
SchemeNo.6, Near Croma Showroom, )
Sion Koliwada, Mumbai – 400 022 )
4. M/s. Sahana Construction Builder/ )
Developer Pvt. Ltd., Mr. Sudhakar Shetty )
(Propretor), Having its Office at Sagar )
Avenue, 54/B, 4th Floor, S.V. Road, )
Andheri (W), Mumbai – 400 058. )...Defendants
APPEARANCE:-
Ld. Adv. Bhadkamkar for the plaintiff.
Ld. Adv. Mr. Vyavahare for the defendant Nos.1 and 2/MCGM.
Ld. Adv. Mr. K.M. Yadav for the defendant 3(d).
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C. P. JAIN (C.R.NO.06)
DATED : 31st OCTOBER, 2020.
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O R D E R
This Notice of Motion No.1156/2020 is taken out by
defendant 3(d) praying to set aside order dated 19.09.2019 closing the
evidence of LR’s of defendant No.3 and keeping the matter for
arguments so also to condone the delay of 161 days in filing written
statement & to permit her to file her written statement.
2. In the affidavit filed in support of Notice of Motion, it is
averred by defendant No.3(d) that she is residing in Gujrat along with
her family. This fact was known to plaintiff. Despite this being fact, she
is served on address of suit premises at Koliwada. Defendant No.3(d)
admits to have received the suit summons on 27.08.2019. According to
her, on account of her ill health, education of her children at Gujrat and
on account of her personal difficulty, she could not come to Mumbai
and file her written statement. It is also averred that she was not given
opportunity to file her written statement. No affidavit of service upon
of added defendants was tendered by plaintiff in court. Despite being
fact, the matter was posted for evidence of legal heirs of deceased
defendant No.3 and on 19.09.2019 their evidence was closed. Deceased
defendant No.3 has filed his evidence affidavit however, prior to his
cross examination, he died. Therefore, no evidence could be adduced
on behalf of defendant No.3. Opportunity therefore needs to be given
to legal heirs to file her written statement by setting aside the order
dated 19.09.2019. Accordingly, this notice of motion is moved by her.
3. Per contra, learned advocate for plaintiff has vehemently
opposed this notice of motion on the ground that the notice of motion
is in collusion with defendant Nos.3(b) (c) and (e). After the notice of
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motion of defendant Nos.3(b) (c) and (e) bearing No.3839/2019 was
dismissed on 07.11.2019, present notice of motion is moved by
defendant No.3(d). Defendant Nos.3(b) (c) and (e) and defendant
No.3(d) are hand in gloves. Defendant No.3(d) was served with
amended plaint on 27.08.2019. Present notice of motion is moved on
04.03.2020. No sufficient reasons are made out to condone the delay.
Ample opportunity was given to legal heirs of defendants. Therefore,
the notice of motion deserves to be rejected.
4. Heard both the learned advocates. Perused the file. At the
outset, there is no dispute that original defendant No.3 died after filing
his evidence affidavit. Therefore, original defendant No.3 was not cross
examined. The legal heirs of original defendant No.3 are brought on
record by way of order dated 29.07.2019 on Chamber Summons
No.1273/2019. Plaintiff has carried out the amendment on 13.08.2019.
Thereafter, it reveals that the matter was directly posted for recording
of evidence on 20.08.2019. On 20.08.2019, the concerned Presiding
Officer being on training was adjourned to 05.09.2019 on same stage
i.e. for recording of evidence. Thereafter, on 19.09.2019 my
predecessor in office has observed that no adjournment application is
filed on behalf of defendant No.3 and thereby closed the evidence of
LR’s of defendant No.3 so also the evidence of defendant No.4 was
stopped. The matter was posted for arguments on 05.10.2019.
Thereafter on 05.10.2019 defendant Nos.3(b) (c) and (e) had moved
Notice of Motion bearing No.3839/2019 for setting aside the aforesaid
order dated 19.09.2019 and permit defendant Nos.3(b) (c) and (e) to
file their written statement. The same was decided on merits and was
dismissed on 07.11.2019. After dismissal of this notice of motion, it is
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appearing that defendant Nos.3(b) (c) and (e) have challenged the
order dated 19.09.2019 before Hon’ble High Court. Despite, giving
oppotunity to defendant Nos.3(b) (c) and (e), they have failed to file
stay orders from Hon’ble High Court. Defendant No.3(d) has thereafter
woken up and moved present notice of motion on 04.03.2020.
5. The aforesaid business of court as is appearing from the
roznama clearly reflects that the suit was never posted for written
statement of legal heirs of defendants. Neither there is any entry of
appearance of legal heirs of defendant No.3 after service of amended
plaint. Though learned advocate for plaintiff claims that the amended
plaint was served, the affidavit of service of amended plaint on legal
heirs of deceased defendant No.3 was not filed till 19.09.2019. Neither
there is order of passing “no written statement order” against LR’s of
deceased defendant No.3 till 19.09.2019. There is no stage fixed for
appearance and filing of written statement by the LR’s of deceased
defendant No.3. As the concerned Presiding Officer at that time was on
training there is stamped roznama of fixing the suit on the stage of
recording of evidence by jumping all the intermittent stages of filing of
writ of service of amended plaint, appearance and filing of written
statement by LR’s of deceased defendant No.3. It is pertinent to note
that original defendant No.3 had filed his written statement and
contested the suit but on account of his death prior he could be cross
examined despite filing his evidence affidavit, there is no evidence on
behalf of defendant No.3.
6. No doubt the stage at which present defendant No.3 (d)
has filed his notice of motion clerly reflects that defendant No.3(d) and
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defendant Nos.3(b) (c) and (e) are hand in gloves and in collusion. To
that effect this court had made observations in roznama dated
27.02.2020. But the fact cannot be disputed that the legal heirs of
deceased defendant No.3 have been denied opportunity to contest the
suit on account of latches in the carrying forward of the roznama which
is mistake on the part of court. It cannot be ignored that the anxiety,
hand in gloves of defendant No.3(b), (c), (e) and defendant No.3(d) is
to take their defence/written statement on record. Anxiety is to get
opportunity to contest the suit, which any prudent person will feel. As
discussed above, original defendant No.3 had contested the suit but
before he could be cross examined he has died. The attempts of legal
heirs of deceased defendant No.3 (defendant Nos.3(b) (c) and (e))
have failed to bring their defence on record as the Notice of Motion
No.3839/19 was dismissed. Therefore, collusion of legal heirs of
deceased defendant No.3 is understandable.
7. Plaintiff has knocked the doors of court in year 2011. Since
then he is fighting for justice. I am aware of this fact. However, even if I
reject this notice of motion, it will be impugned before higher authority
as is the fate of this suit since the dismissal of earlier Notice of Motion
No.3839/2019. If the suit is decided after giving opportunity to both
the parties it will be in the interest of both the parties. Because plaintiff
has filed the suit, I understand that he is anxious to get the result of the
suit. But as discussed above, dismissal of notice of motion will be
nothing more than delaying the suit as there will be multiplicity of
proceedings which will not be in the interest of plaintiff. On the
contrary, if the suit is proceeded ahead in time bound fashion, it will
serve the purpose. Hon’ble High Court had already made this suit time
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bound. On account of the filing of A.O. No.39/2020, and on account of
lockdown, this suit is delayed.
8. Coming to the reasons which are made out in present
notice of motion and the time span of delay, it cannot be said that they
are utterly false and cannot be considered. It is settled legal position as
on today that procedural technicalities should not be hurdle while
imparting justice. Procedural law is handmaid of justice and should not
be hurdle but is means to sub-serve the ends of justice.
9. Because there is mistake on the part of court, litigant
should not suffer for the same. Because original defendant No.3 had
filed his written statement and as discussed above, he could not be
cross examined on account of his death despite filing his evidence
affidavit, it will be appropriate that defendant No.3(d) is given
opportunity and accomodated for the mistake on the part of court
proceeding. Needless to say the dispute between the parties on this
aspect will settle at rest. The suit of plaintiff if decided on merits will be
in his interest as discussed above, or else will result in multiplicity of
proceeding which is never in his interest. Therefore, if defendant
No.3(d) is given opportunity to file his written statement on costs, in
time frame, keeping the matter day to day will serve the purpose.
Therefore, in the interest of justice, I am inclined to allow the notice of
motion on costs. Accordingly, I proceed to pass following order.
ORDER
1. The Notice of Motion No.1156/2020 is hereby allowed subject to
costs of Rs.2,500/- (Rs. Two Thousand Five Hundred Only), to be
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paid by defendant No.3(d) to plaintiff on or before next date,
failing which this order shall stand vacated.
2. Upon depositing the costs as per clause (1) of this order, the
order dated 19.09.2019 passed against defendant No.3(d) shall
stand set aside by condoning the delay and permitting the
defendant No.3(d) to file written statement within 4 days of
deposition of costs and thereafter the suit will be heard day to
day.
3. The Notice of Motion No.1156/2020 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date :31.10.2020. City Civil Court, Gr. Bombay
Directly dictated on computer : 31.10.2020.
Checked on : 02.11.2020.
Signed on : 03.11.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 03.11.2020, 02.56 pm.
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
31.10.2020
JUDGMENT/ORDER signed by P.O.
on
03.11.2020
JUDGMENT/ORDER uploaded on 03.11.2020
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