Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1301/2019 SUM.SUIT 1189/2018 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1301 OF 2019
IN
SUMMARY SUIT NO.1189 OF 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR.NO.MHCC01-003369-2019)
Vijay Baburao Kulkarni ...Plaintiff
Versus
Mahesh Gangadhar Hiredesai ...Defendant
Appearances:-
Plaintiff in person.
Advocate Mr.Poojari for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 27th FEBRUARY 2020
O R D E R
1. By this Notice of Motion the defendant requested to condone the
delay and accept vakalatnama and written statement on his behalf. The
plaintiff resisted the Notice of Motion. Heard the plaintiff in person.
Also heard Ld Advocate on behalf of the defendant.
2. It is not disputed that the summons has been served on the
defendant on 08-12-2018 by RPAD. The service of summons has been
deemed because the postal envelope was not claimed by the defendant.
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The defendant did not appear within stipulated period of 10 days. The
Affidavit in support of Notice of Motion states the reasons that the
defendant was not in town during that period and therefore could not
claim the RPAD. When he returned, he visited the concern post office
but by that time the RPAD packet was returned to the sending post
office. As his brother had also received similar RPAD from the City Civil
Court regarding suit filed by the present plaintiff, he felt the RPAD to be
from City Civil court. Thereafter, time was required to the defendant to
search and engage advocate. Also, the copy of plaint was not with the
defendant. Therefore, the defendant through his advocate collected the
copy of plaint from the plaintiff. Thereafter, giving instructions written
statement was prepared. In this course, time was required. The reasons
as stated are on affidavit. It is also not disputed that after service of
summons the defendant had collected the copy of plaint from the
plaintiff. The defendant is resident of Vijaypura. Thus, he is not resident
of Mumbai. It may be probable that a person out of Mumbai may
require some time to search and engage advocate. The plaintiff argued
that the matter was fixed only for appearance of the defendant and
therefore, the defendant could have appeared in person within
stipulated time. It is also argued that time of 10 days is sufficient to
engage advocate. This court must note that though personal appearance
of the defendant would have been sufficient in the matter within
stipulated period, however, the defendant being a common person may
not be aware of the process of summary suits. Normally a person on
receipt of any summons from a court approaches an advocate and not
the court directly or in person. So may be with the defendant.
Considering all these circumstances, the reasons as mentioned are
sufficient to condone the delay in appearance. The plaintiff may be
compensated in terms of money for the delay. In this background, the
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NM 1301/2019 SUM.SUIT 1189/2018 3
appearance of the defendant may be allowed on record subject to cost.
However, regarding written statement, the same cannot be taken on
record at this stage, this being summary suit and yet at the initial stage.
Therefore, the Notice of Motion deserves to be allowed partly. Hence,
order as follows is passed.
ORDER
1. The Notice of motion No.1301/2019 is partly allowed as under:-
2. The delay caused to the defendant to appear is condoned and the
appearance of the defendant be taken on record subject to cost of
Rs.2000/- (Rupees Two Thousand only) to be paid by the
defendant to the plaintiff.
3. Notice of Motion 1301/2019 is disposed.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 27/02/2020 City Civil Court,Gr. Mumbai
Dictated on : 27/02/2020
Signed on : 03/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
04/03/2020 ast 1.30p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 27/02/2020
Judgment/Order signed by P.O. on 03/03/2020
Judgment/Order uploaded on 04/03/2020
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