Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1303/19 SUM.SUIT 1316/18 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1303 OF 2019
IN
SUMMARY SUIT NO.1316 OF 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR.NO.MHCC01-003370-2019)
Vijay Baburao Kulkarni ...Plaintiff
Versus
Samarathmal Jessaji Bhati ...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 set aside Ex-
parte order dtd.17-01-2019, 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. However, the defendant did not appeared
within stipulated period of 10 days. The Affidavit in support of Notice
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NM 1303/19 SUM.SUIT 1316/18 2
of Motion states the reasons that after service of summons 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 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.1303/2019 is partly allowed as under:-
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NM 1303/19 SUM.SUIT 1316/18 3
2. Ex-parte order dtd.17-02-2019 passed against the defendant is set
aside and 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 1303/2019 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 adt 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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