Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 1484/2019 in S.C Suit No.96/2018. 1 Order.
MHCC010039212019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1484 OF 2019
IN
S.C. SUIT NO. 96 OF 2018
Mrs. Hasmat-Un-Nisha Sharif Ahmed
Qureshi
... Plaintiffs
V/s.
Mohammed Jafar Sharif Ahmed Qureshi
and others.
... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 14/07/2023.
Appearance:-
Ld. Advocate Shri M. A. Adenwala for the plaintiff.
Ld. Advocate Shri Saeed Mogul for defendants.
ORDER
1. Defendants have taken out this notice of motion for
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NM No. 1484/2019 in S.C Suit No.96/2018. 2 Order.
condoning delay of 325 days caused in filing written statement and
allow him to file written statement on record.
2. Plaintiff filed affidavit in reply and opposed the notice of
motion.
3. I have heard Ld. Advocate for both the parties.
4. It appears from the record that writ of summons were duly
served on defendants for appearance on 19.01.2016. Record shows that
defendant No.1 appeared in person and sought time to file reply and
written statement. Then defendant nos. 1 and 2 appeared through their
advocate on 30.01.2018, but failed to file written statement on that day
and even on subsequent dates. Then on 28.06.2018, suit is ordered to
be proceeded without their written statement. Said order is sought to be
set aside by this notice of motion.
5. Ld. Advocate for the defendants are argued that, the earlier
advocate appearing on behalf of the defendants told them that he
would handle the case and would call them whenever their presence is
required. However, the advocate did not contact them and never
appeared. In December-2018, defendants came to know that no written
statement order and the injunction order has been passed against them
and therefore, they appointed new advocate and filed the present notice
of motion. Ld. Advocate for the defendants also argued that, there is no
fault on the part of defendants in not filing written statement and it is
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NM No. 1484/2019 in S.C Suit No.96/2018. 3 Order.
the negligence on the part of their earlier advocate. For negligence of
advocate, parties would not suffer. Hence, Ld. advocate for the
defendants prayed to condone the delay and allow the defendants to
file the written statement by allowing the notice of motion.
5. On the contrary, Ld. Advocate for the plaintiff argued that
this become a practice to blame on the earlier advocate for not
appearing in the suit and not taking steps. Defendants were negligent
since January-2018, for not appearing in the suit. Therefore, it is their
duty to inquire with the advocate during the said period about the stage
of the matter. However, Ld. Advocate alternatively prayed to impose
compensatory caused, if court would allow the notice of motion.
6. I have considered the submissions, it appears that
defendant Nos. 1 and 2 lastly appeared on 30.01.2018 and thereafter,
not appeared in the suit though defendants are blaming to their
advocates, but it was their duty to make inquiry after 2-3 months with
the advocate as to what happened in the suit. They are equally
responsible for not filing written statement. However, considering the
stage of matter that it is not proceeded at any substantiate stage. To
give fair opportunity to the defendants to contest the suit on merit, the
order dtd. 28.06.2018 needs to be set aside. Costs has to be imposed to
compensate the plaintiff. In view of this, I pass following order:
ORDER -
1. Notice of Motion No. 1484 of 2019 is allowed in terms of
prayer clause (a) to (d) subject to costs of Rs.2000/- payable to
plaintiff within 15 days from today.
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NM No. 1484/2019 in S.C Suit No.96/2018. 4 Order.
2. On payment of costs, written statement be taken on record.
3. Notice of Motion No. 1484 of 2019 is disposed off accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date :14.07.2023 Gr. Bombay.
1. Dictated on : 14.07.2023
2. Transcribed on : 14.07.2023
3. Checked and Signed on : 17.07.2023
4. Delivered to Certified :
Copy Section on
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NM No. 1484/2019 in S.C Suit No.96/2018. 5 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17.07.2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 14.07.2023
Judgment/Order signed by P.O. on 17.07.2023
Judgment/Order uploaded on 17.07.2023
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