Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.1337/19
MHCC010034572019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 1337 OF 2019
IN
S.C. SUIT No. 681 OF 2017
1. Mr. Niraj Arun Gujar & Ors. ...Plaintiffs.
VERSUS
1. Shri Mahendra Sadashiv Surve & Anr. … Defendants.
Appearance
Learned Advocate Mr. Rajiv Deokar for the plaintiffs.
Learned Advocate Raju Hingu for defendant No.1
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 20th August, 2022
O R D E R
This notice of motion is taken out by defendant No.1 to
condone delay in filing written statement.
2. This motion is opposed by the plaintiffs by filing reply to
the notice of motion.
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3. Heard learned Advocate for defendant No.1. No argument
of the plaintiffs. Read affidavit in support of notice of motion and
additional affidavit filed by defendant No.1 and affidavitinreply filed
by the plaintiffs.
4. It is the contention of defendant No.1 that on his
appearance, the plaintiffs approached to him for settlement of dispute.
Due to chances of settlement, defendant No.1 did not prepare the
written statement. On 29.08.2018 notice of motion filed by the
plaintiffs was disposed off on the statement of defendant's Advocate
that he will not dispossess the plaintiff without following due process of
law. Since, February, 2019 this defendant started to collect the papers
required for filing written statement. The documents are 25 years old.
It required requisite time to prepare written statement. By additional
affidavit, it is the contention of defendant No.1 that his Advocate
waived service of suit summons. He inadvertently stated that writ of
summons was not served. The objection raised by the plaintiffs is that
there was no attempt for any settlement. The reasons stated by
defendant No.1 is denied by the plaintiffs. The defendants have
contested the notice of motion by reply dated 15.06.2017 therefore,
reason of settlement stated by defendant No.1 is not correct.
5. On perusal of the contents in the affidavitinsupport of
notice of motion, it is noticed that defendant No.1 has waived service of
writ of summons therefore, there was no requirement for service of suit
summons. The said statement about waiving of service of suit summons
made on 23.03.2017 thereafter, notice of motion has been disposed off.
The defendants have failed to file written statement within time limit of
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30 days. Admittedly, since March, 2020 to February, 2022 there were
directions of Hon'ble Supreme Court passed in suo motu Writ Petition
No.03/2020 to exclude the period of limitation. Even excluding that
period there is delay in filing written statement.
6. Learned Advocate for the plaintiff relied on following
judgments:
1) Zolba V/s. Keshao & Ors. 2008 (3) Bom C.R.1 (Supreme Court).
2. Justice Micheal F. Saldanha (Retd.) V/s. M.P.Noronha (Melwyn
Prakash Noronha) and others 2016 DGLS (Kar) 664, Karnataka
High Court.
3. Tapodhan Prabhudas Khodidas Through L.Rs. V/s. Dy. Collector
Land Acquisition and Rehabilitation, 2022 DGLS (Guj.) 12.
7. In Zolba case supra, it is held that delay can be condoned
and written statement can be accepted even after expiry of 90 days
from the date of service of suit summons. It is held that, it cannot also
be forgotten that in an adversarial system, no party should ordinarily
denied the opportunity of participating in the process of justice
dispensation.
8. In Justice Micheal Saldanha case supra, it is held in para 22
that,
“Procedural law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. Procedural prescriptions are the
hand maid and not the mistress, a lubricant, not a resistance in
the administration of justice”.
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9. In Tapodhan Prabhudas Khodidas case supra, it is held in
para 11 that,
“The term “sufficient cause” is to receive liberal construction so as
to advance substantial justice, when no negligence, inaction or
want of bona fide is attributable to the appellants, the Court
should adopt a justiceoriented approach in condoning the delay”.
In State of Nagaland V/s. Lipok AO (2005) 3 SCC 752 : JT (2005)
4 SC 10, it was held as under:
“Section 5 is to be construed liberally so as to do substantial
justice to the parties. The provisions contemplates that the court
has to go into the position of the person concerned and to find
out if the delay can be said to have been resulted from the cause
which he had adduced and whether the cause recorded in the
peculiar circumstances of the case is sufficient”.
10. In case before me, service of suit summons was waived,
thereafter notice of motion has been decided and thereafter, defendant
No.1 filed this notice of motion in the month of March, 2019 requesting
to condone the delay. Considering the reason that time was required
for defendant No.1 to collect the necessary documents, in view of ratio
laid down by the Hon'ble Supreme Court and the Hon'ble High Courts
in the above cited judgments, I am of the view that the delay shall be
condoned. I am of the further view that defendant No.1 due to his
inaction to file the written statement within time has caused delay for
progress of his suit hence, he shall be liable for costs. In the result, I
pass following order :
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O R D E R
1. Notice of Motion No.1337 of 2019 is allowed subject to costs of
Rs.3000/ (Rupees Three Thousand Only).
2. Defendant No.1 is allowed to file written statement by compliance as
to payment of costs.
3. Costs shall be paid to the plaintiff.
4. Notice of Motion No.1337/2019 is disposed of accordingly.
(Rajesh A. Sasne)
Date : 20.08.2022 Judge,
Dictated on : 20/08/2022 City Civil Court,
transcribed on : 20/08/2022 Mumbai.
Signed on : 22/08/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
23.08.2022 at 12.20 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 20/08/2022
Order signed by P.O. on 22/08/2022
Order uploaded on 23/08/2022
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