Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.1335 OF 2019
IN
S.C. SUIT NO.2667 OF 2016
Sayyad Israr Hussain … Plaintiff
V/s.
Shekh Madar Fakir Badshaha … Defendant
Appearances :
Ld. Adv. Priyank Shukla for plaintiff.
Ld. Adv. Singh for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 08th NOVEMBER, 2019
ORDER
Defendant has taken out this notice of motion for setting
aside the order dated 06.02.2019 whereby the suit is kept for exparte
judgment and to allow him the hearing.
2. It is argued on behalf of defendant that he is owner of suit
Room No.320, B3, CWing, MHADA Colony Subhash Nagar, Nahur
Village Road, Bhandup. He has given said room on leave and license
basis to plaintiff since 30.11.2013. Said agreement was extended time
and again and the last period was from 01.10.2015 to 31.08.2016. He
has not extended the period after 31.08.2016. Despite his request
plaintiff has refused to deliver vacant possession of suit room. On
MHCC01003455 2019
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ORDER IN NM 1335/2019 .. 2 .. Suit No.2667/16
15.03.2019 from plaintiff he learnt about this suit. In fact no suit
summons was duly served on him. Therefore he was not aware about
this suit. On disclosure by plaintiff he immediately contacted his
advocate got the copies and thereby filed this notice of motion.
Defendant being owner of suit room had substantial right and interest
in the subject matter. There is no intentional delay on his part. So he
may be allowed to contest the matter by setting aside the stage of ex
parte judgment.
3. The Ld. Counsel for plaintiff has resisted the application by
filling reply. It is argued that the application is not maintainable for
want of proper prayer. Defendant is just asking for setting aside the
order whereby suit is kept for exparte judgment. In fact on 16.06.2017
exparte order is passed against defendant. It is very much necessary
for him to get set aside said order. Therefore no purpose will be solved
even if the exparte judgment stage is changed. Moreover there is
intentional delay on the part of defendant. Defendant has accepted
considerable amount from plaintiff under the garb of sale of suit room
in his favour. Now neither he is enforcing the contract nor returning
the substantial amount. Therefore plaintiff has filed this suit. Since
beginning defendant was well aware about this suit. However
intentionally he has not appeared and now to avoid the decree in favour
of plaintiff he has filed this application.
4. It is a matter of record that on 16.06.2017 exparte order is
passed against defendant. Thereafter plaintiff led his evidence and after
hearing the arguments on behalf of plaintiff suit is posted for exparte
judgment since 27.02.2019.
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ORDER IN NM 1335/2019 .. 3 .. Suit No.2667/16
5. It is argued on behalf of defendant that there was no
intentional delay of his part and not having knowledge of this suit is the
reason for not appearing before the Court. Therefore he was having
sufficient cause for not appearing in the Court and on knowledge he
promptly approached the Court. On the other hand Ld. Counsel for
plaintiff challenged the application on the ground that defendant is not
seeking setting aside of exparte order dated 16.06.2017. No doubt
technically it is necessary for defendant to get set aside exparte order
dated 16.06.2017. However instead of it he is praying for setting aside
the stage of exparte judgment. In my opinion Court should not be too
technical to deprive the parties from substantial justice. Though
defendant has not asking for setting aside for exparte order dated
16.06.17, it was his intention to allow him to contest the suit.
Therefore considering his intention and main relief one should not go in
technicalities that he is not asked for setting aside exparte order.
6. On the point of sufficient cause Ld. Counsel for defendant
relied on one judgment of Gujarat High Court in the case of Punaben
Vs. Shantaben decided on 29.02.2012. Said judgment is on sufficient
cause for condoning the delay. In said judgment there is reference of
decision of Hon'ble Supreme Court reported in (2001)9 Supreme
Court Cases page 106. It is observed that Court must distinguish
between case having inordinate delay and case where delay is of few
days. In case of delay of few days Court must adopt liberal approach.
On the point of sufficient cause it is observed that it may be a cause
beyond the control of party. Here as per defendant he was not aware
about the suit and therefore not appeared. This can be taken a
sufficient cause i.e. cause beyond his control.
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ORDER IN NM 1335/2019 .. 4 .. Suit No.2667/16
7. In addition to above observation I may say that as far as
possible matter must be decided on merit by giving full and fair
opportunity to the parties. Here refusal may amount to multiplicity of
litigation. Therefore in my opinion opportunity needs to be given to the
defendant to contest the suit. In case of delay certain cost can be
imposed. Accordingly the order.
ORDER
1. NM No.1335/19 in SU 2667/16 is hereby allowed.
2. The order dated 06.02.2019 keeping matter for ex
parte judgment as well as initial exparte order dated
16.06.2017 are hereby set aside on defendant paying cost
of Rs.5,000/ to plaintiff or to deposit it in the Court on or
before next date.
3. On compliance of cost order defendant is allowed to
contest the matter by filing appropriate written statement.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 08/11/2019 City Civil Court, Gr. Mumbai
Dictated on : 08.11.2019
Transcribed on : 13.11.2019
Signed on : 13.11.2019
sbk/
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ORDER IN NM 1335/2019 .. 5 .. Suit No.2667/16
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14.11.2019 05.50 p.m. Sanjay Baliram Kaskar
(Stenographer H.G.)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
08.11.2019.
Judgement/order signed by P.O on 13.11.2019.
Judgement/order uploaded on 14.11.2019.
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