Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1403-2019 in Suit no.2279-16
1 Date :13.03.2020
MHCC010035992019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1403 OF 2019
IN
SUIT NO. 2279 OF 2016
(CNR NO.MHCC01-003599-2019)
Mrs. Shantabai Maruti Durge & Anr. .. Plaintiffs
Versus
Mrs. Urmila Suresh Durge & Ors. .. Defendants
Appearances :-
Ld. Adv. Ditendra Mishra for plaintiff.
Ld. Adv. R.S.Pawar for defendant no.1 to 3.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 13.03.2020
ORDER
1. Defendant No. 1 to 3 have filed instant Notice of Motion for
setting aside ‘No WS Order’ dated 28.01.2019 and condonation of
delay if, any in filing Written Statement.
2. It is contended by the defendants that plaintiffs filed present
suit for injunction and declaration against the defendants thereby
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praying that the plaintiffs are in exclusive possession of the suit
property. It is contended by the defendants that they have been
served with the suit summons and they had appeared in the
present matter. On 20.10.2016, the plaintiff filed Notice of Motion
No. 3829 of 2016 which was posted for filing of reply. On
07.04.2017, Advocate Jadhav filed his Vakalatnama on their
behalf. Thereafter, the matter was referred to Mediation for
settlement. Therefore, hearing of Notice of Motion was also
adjourned time to time.
3. It is contended by the defendant that on 15.02.2016, the
defendant no. 1 herein filed Civil Suit No. 505 of 2016 against the
plaintiff herein seeking declaration against present plaintiff that
they have no right, title and interest in the suit premises. It is
contended by the defendant that the plaintiff herein in order to
give Counter Blast to their Suit No. 505 of 2016 by filing present
suit seeking same relief. On 19.06.2018, their advocate pointed
out the aforesaid facts. Therefore, this Court directed to tag both
the matters together.
4. It is contended by the defendants that on 29.06.2018, they
had appeared through another advocate who undertakes to file
Vakalatnama. On 05.09.2018, the matter was referred to Lok-
Adalat which was scheduled on 08.09.2018. On 28.01.2019, the
plaintiff took above matters on board without any notice to the
defendants, thereby, this Court rectified Roznama dated
24.01.2019 and passed order to proceed ex-parte evidence.
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5. It is contended by the defendants that the present advocate
tried to settle the dispute and also instructed to collect necessary
papers for filing Written Statement. The suit premises is the old
structure. Therefore, defendants took time to collect necessary
papers which were required by advocate to file Written Statement.
As soon as these documents were collected, it was forwarded to
their advocate to prepare Written Statement and say of Notice of
Motion No. 3829 of 2016. However, due to personal difficulty of
advocate, he could not appeared on 10.12.2018 and 24.01.2019.
5. It is contended by the defendants that as both the suits were
tag together and matter was adjourned on 18.04.2018 and since
none of the parties were present, therefore, this Court passed ‘No
WS Order’ against defendants. It is submitted by the defendants
that as they could not locate the necessary documents therefore,
delay has been caused in filing Written Statement. Therefore, they
prayed for setting aside order dated 28.01.2019 by which this
Court proceed for ex-parte evidence.
6. Plaintiffs opposed Notice of Motion by filing say. It is
contended by the plaintiff that defendant no. 1 to 3 were
appearing in the matter from the date of ad-interim relief and they
were aware about the pending proceeding. The defendants on
13.10.2017 filed their reply to the Notice of Motion No. 3829 of
2016. The defendants deliberately and intentionally delayed the
matter and not filed Written Statement. The defendant failed to
give any bonafide reasons. Hence, plaintiff prayed for dismissal of
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Notice of Motion.
7. I have perused the Service Affidavit dated 04.10.2016 filed
by the plaintiff. On perusal of the same, it appears that defendant
no. 1 to 3 were served on 15.10.2016 with Notice of Motion No.
3829 of 2016 alongwith plaint. I have also perused Roznama. It
appears that the defendants appeared in the matter on
19.10.2016. On that day, ad-interim relief was granted by my
Predecessor. Thereafter, on 07.04.2017, Advocate Jadhave
tendered Vakalatnama on behalf of the defendants and the matter
was referred to the Mediation. On 13.10.2017, the defendants
filed reply to Notice of Motion No. 3829 of 2016. This Court
received Mediation Report on 05.06.2018 as mediation was failed.
Thereafter on 29.06.2018, 23.08.2018, the Advocate Mr. Pawar for
defendants took adjournment on the ground that he wanted to file
Vakalatnama.
8. It appears that on 29.06.2018, the defendants changed their
advocate. On 05.09.2018, the matter was referred to the Lok-
Adalat. However, the matter can not be settled before the Lok-
Adalat. Thereafter, the matter was posted on 04.10.2018. On that
day, only defendant no. 1 was present. The matter was adjourned
to 10.12.2018. On that day also defendant no. 1 only present and
matter was posted on 24.01.2019. However, on 24.01.2019, none
appeared for the defendants. The matter inadvertently posted for
framing of issues on 27.02.2019. However, the aforesaid mistake
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was corrected on 28.01.2019 on the request made by plaintiff, who
moved by precipy. On that day, it revealed to my Predecessor that
the defendants failed to file Written Statement. Hence, the suit
was proceeded for recording ex-parte evidence.
9. As the matter was fixed on 27.02.2019, non appeared for the
defendants. Hence, the matter was adjourned for hearing on
documents on 26.03.2019. The Advocate Mr. Pawar for defendant
no. 1 to 3 moved by precipy on 25.03.2019 and tendered two
drafts of Notice of Motion alongwith Affidavit. Thereafter, vide
order dated 09.04.2019, present matter was assigned to Court
Room No. 9. The matter was listed on 30.04.2019 and
03.07.2019. But non appeared for the defendants. On
25.07.2019, advocate Pawar for defendant filed Vakalatnama and
also tendered Registered Notice of Motion No. 1404 of 2019 and
1403 of 2019 as well as rejoinder to Notice of Motion No. 1403 of
2019. Thereafter, the matter was adjourned time to time.
10. On perusal of the Service Affidavit, it appears to me that the
defendant no. 3 served with the Notice of Motion, copy of plaint
on 15.10.2016. Bailiff report dated 23.08.2018 further shows that
defendant no. 1 to 3 were duly served with Suit Summons on
10.08.2018. Roznama further shows that the defendants appeared
on 19.10.2016 which shows that they were having knowledge
about the present proceedings. The reasons assigned by the
defendant that as his matter was referred to Mediation, therefore,
delay has been caused. However, record shows that on
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07.04.2017, the matter was referred to the Mediation and
Mediation Report shows that it was failed on 07.07.2017.
Thereafter, the defendant appeared on 13.10.2017, 18.12.2017,
15.03.2018, 23.03.2018, 29.06.2018 till that time the defendants
did not tender the Written Statement nor their advocate filed
Vakalatnama inspite of giving specific undertaking. The Bailiff
Report dated 23.02.2018 shows that Writ of Summons were served
upon the defendant on 10.08.2018. Even if I take the aforesaid
date as the date of commencement of statutory period for filing
Written Statement, then the defendants ought to have filed Written
Statement within 30 days from 10.09.2018. However, defendant
failed to file Written Statement on or before 10.09.2018. On
08.09.2018, the matter was referred to Lok-Adalat wherein only
defendant no. 1 was present and no settlement was done.
Thereafter, the matter was adjourned time to time but no steps
were taken by the defendants to file Written Statement. Overall
from the aforesaid fact, it appears to me that before service of
summons upon the defendants period from 07.04.2017 to
07.07.2017 was only gone for Mediation. There is no explanation
for period 19.10.2016 till 07.04.2017 i.e. prior to referring of
matter to Mediation. Even there is no explanation for period from
10.08.2018 till filing of present Notice of Motion, as why
defendants could not file Written Statement. The defendants were
having knowledge of the present proceedings inspite of that they
failed to file Written Statement. The reasons assigned are not
sufficient. Moreover, the defendants failed to mentioned number
of days delay in filing Written Statement. Hence, I am not inclined
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to set aside order dated 28.01.2019. Thus, I proceed to pass the
following order :
ORDER
1. Notice of Motion No. 1403 of 2019 is hereby dismissed.
2. Notice of Motion No. 1403 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 13.03.2020 Greater Bombay.
Dictated on : 13.03.2020
Typed on : 13.03.2020
Draft Submitted on : 13.03.2020
Checked on : 14.03.2020
Signed on : 14.03.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
14/03/2020 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
13/03/2020
JUDGMENT/ORDER signed by P.O.
on
14/03/2020
JUDGMENT/ORDER uploaded on 14/03/2020
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