Order 1

Order Details: Notice of Motion
Pdf Text: NM.No.4601/2022 - 1 - SU.No.1019/2019
MHCC010132872022
Presented on : 07-12-2022
Registered on : 07-12-2022
Decided on : 20-03-2026
Duration : 3 years, 3 months, 13 days
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.4601 OF 2022
IN
S. C. SUIT NO.1019 OF 2019
Mr. Abhijeet Vijay Sawant
(since deceased)
1a) Mrs. Rupali Abhijeet Sawant and
Others. .. Plaintiffs
Versus
Sandeep Vijay Sawant .. Defendant
Appearance :-
Ld. Advocate S.M. Suryawanshi for the Plaintiffs.
Ld. Advocate Dhanashree Hublikar for the Defendant.
CORAM: HIS HONOUR JUDGE
S.M. BUKKE
COURT ROOM NO.03
DATE: 20th March, 2026.
O R D E R
(Dictated and Pronounced in open Court)
1. The defendant in Suit No.1019 of 2019 has taken out
present notice of motion seeking condonation of delay in filing written
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statement and for recalling and setting aside the order dated
22.09.2022 whereby the suit was directed to proceed without written
statement .
2. The plaintiff has instituted present suit for partition. The
writ of summons was served upon the defendant on 06.08.2019 and
defendant appeared through his advocate before this Court on
09.08.2019.
3. The defendant is employed abroad on a contractual
assignment with an Oil and Gas Company project. His duties require
him to work offshore in deep sea operations at Abu Dhabi, U.A.E.
Therefore, it is difficult for him to attend the present proceeding before
this court
4. Thereafter, owing to the nationwide lockdown and
restrictions imposed by both the Central Government and the State
Government in view of the Covid-19 pandemic, the applicant was
prevented from appearing before this Court.
5. During the period of lockdown, the original plaintiff, who
was the brother of the defendant, unfortunately passed away. Owing to
the sad demise of his brother, the defendant was unable to file the
written statement within the prescribed time. In the meantime, the
legal heirs of the plaintiff were brought on record. Subsequently,
considerable time was consumed in finalizing the written statement,
collecting relevant documents, and arranging for the defendant’s return
to India from abroad.
6. On 22.09.2022, this Hon’ble Court passed an order
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recording “no written statement” against the defendant. The delay in
filing the written statement is neither deliberate nor intentional. If the
delay is not condoned, irreparable hardship and prejudice will be
caused to the defendant, which cannot be compensated in monetary
terms. The defendant, therefore, craves indulgence of this Court to
allow the Notice of Motion.
7. The plaintiffs have strongly opposed the Notice of Motion
on the ground that the writ of summons was served upon the
defendant in the year 2019. Despite service of summons, though the
defendant appointed an advocate to contest the suit, he intentionally
failed to file the written statement. The defendant, through his
advocate, had submitted that he would not create third-party rights in
respect of the suit property. The plaintiffs admit that the original
plaintiff expired on 22.04.2020. The chamber summons filed by the
plaintiffs to bring the legal heirs on record was allowed in the absence
of the defendant. The defendant was well aware of these facts.
Subsequently, this Court passed “no written statement” order against
the defendant on 22.09.2022.
8. The plaintiffs contended that there is no sufficient cause to
condone the delay. The delay has not been explained on a day-to-day
basis. The defendant is attempting to take undue advantage of the
pandemic situation and the death of the plaintiff. Hence, the plaintiffs
pray for dismissal of the Notice of Motion.
9. Heard the learned advocates for the plaintiffs as well as the
defendant at length. Perused the record.
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10. On perusal of the record, it appears that the present suit
was instituted on 27.03.2019 for partition and perpetual injunction.
The writ of summons was served upon the defendant on 06.08.2019.
The defendant entered appearance through his advocate on
09.08.2019. However, no written statement was filed by the defendant.
Consequently, this Court passed the “no written statement” order
against the defendant on 22.09.2022.
11. In order to demonstrate sufficient cause for condonation of
delay, the defendant filed an affidavit contending that from February
2020, lockdown and restrictions were imposed by the Central and State
Governments. Meanwhile, the defendant’s brother (original plaintiff)
expired on 22.04.2020. Thereafter, the legal heirs of the plaintiff were
brought on record, and the amended copy of the plaint was served
upon the defendant on 28.02.2022. To substantiate that he was
working abroad, the defendant has produced his passport and a
certificate issued by his employer, showing that he was engaged in an
Oil and Gas Company project in Abu Dhabi, U.A.E.
12. The defendant has filed all relevant documents and
sufficiently demonstrated that the delay was neither intentional nor
mala fide. The delay caused due to the Covid-19 pandemic,
professional commitments abroad, and the demise of the plaintiff. The
delay is not inordinate and deserves to be construed liberally. The
defendant has already undertaken not to create third-party rights in
respect of the suit property, which reflects his bona fides. Considering
the facts and circumstances brought on record, the delay of more than
seven months in filing the written statement deserves to be condoned.
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The order dated 22.09.2022 is liable to be set aside.. The Notice of
Motion deserves to be allowed. Hence, I pass the following order:
O r d e r
1. Notice of Motion No.4601 of 2022 made absolute in terms of
prayer clause (a) to (c) subject of cost of Rs.3000/- payable to the
plaintiffs within 15 days.
2. The written statement filed by defendant be exhibited on
payment of cost to the plaintiffs within 15 days.
3. Copy of written statement to be served on the plaintiffs.
4. If the defendant failed to pay the cost within 15 days, this order
automatically stands vacated.
5. Notice of Motion is disposed of accordingly.
(S.M. BUKKE)
Judge,
City Civil Court,
Date: 20.03.2026 Mumbai.
Dictated on : 20.03.2026
Transcribed on : 24.03.2026
Checked on : 25.03.2026
Signed on : 26.03.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME 27.03.2026/11.26 a.m.
NAME OF STENOGRAPHER (Grade-1) (Mrs. Pradnya S. Naik)
Name of the Judge (With Court room no.) Shri S.M. BUKKE
(C.R. No.03)
Date of Pronouncement of JUDGMENT/
ORDER
20.03.2026
JUDGMENT/ORDER signed by P.O. on 26.03.2026
JUDGMENT/ORDER uploaded on 27.03.2026
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