Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010043602018
CNR NO. MHCC010043602018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1378 OF 2018
IN
SUMMARY SUIT NO.447 OF 2016
Mr. Prakash Chimanlal Sheth ] … Plaintiff
V/s.
Mr. Pratik Chandrakant Shah ] ... Defendant
Appearances :-
Ld. Adv. Mr. Balasaheb Deshmukh for plaintiff.
Ld. Adv. Mr. Vijay Mangurle for defendant.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 29th October, 2021
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
for condonation of delay in filing reply to Summons for Judgment. It
was submitted by the defendant that he is not well since last four years.
He is undergoing physiotherapy for Rt. Hemiplegia. His wife is required
to take his care. Therefore, the defendant was unable to give any
instructions to the advocate for filing the reply to the Summons for
Judgment. Similarly, his wife could not give instructions as she was
required to take his care. Therefore, the reply could not be filed in due
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time. The reply was ready but could not be tendered. Therefore, there
was delay of 80 days. The defendant is having good case on merit. If
he is not allowed to file his reply he will suffer loss, harm, injury and
irreparable loss. There are just and reasonable grounds for not filing
the reply within time and therefore the delay be condoned.
2. The Learned Advocate for plaintiff filed reply to the Notice
of Motion and strongly objected on the ground mentioned in Motion. It
was submitted that the copy of Summons for Judgment was received by
the defendant, but the reply could not be filed within 10 days. The
plaintiff served the copy of Summons for Judgment but still the reply
was not filed within time. The defendant has not come with clean
hands. He has make wrong statement. The delay is of 168 days. The
delay has not been properly explained. If the delay is condoned the
plaintiff will suffer harm and prjudice and therefore, delay cannot be
condoned. The Learned Advocate for plaintiff relied upon following
citations:
1. Esha Bhattacharjee Vs. Managing Committee of
Raghunathpur Nafar Academy & Ors. reported in AIR 2013
(SCW) 6158. It has been held that the party who comes with
fraud or misrepresentation cannot seek any relief.
2. Amar Singh Vs. Union of India and Ors. reported in 2011
Supreme (S.C.) 517. It has been held that where the party comes
with unclean hands, it is not entitled to be heard.
3. Order passed in Writ Petition No.9999 of 2013. It has been
held that once the Court has passed an Order in proceeding
without reply, the same Court cannot sit in appeal over its own
order.
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3. Heard Learned Advocate for plaintiff at length. The
Learned Advocate for defendant failed to argue on the Notice of Motion.
However, the defendant in his affidavit in support of Notice of Motion
averred that due to his medical condition he could not file his reply to
Summons for Judgment within time. Admittedly, there is delay in filing
the reply to the Summons for Judgment. However, no reply order has
not been passed against the defendant. The defendant on oath stated
that he could not give instructions to his Advocate due to his medical
condition and his wife also could not give instructions as she was
required to take care of defendant. The wife of the defendant collected
the information from close friends and thereafter, she gave instructions
to file reply. The plaintiff in the present suit is seeking recovery of the
amount. The defendant submitted that he is having good chance of the
succeeding in the present suit and therefore he be allowed to file reply
to the Summons for Judgment. It seems that if the delay is not
condoned the defendant will suffer greater hardship as compared to
that of plaintiff. Considering the medical reason, it seems that the delay
was not deliberate or intentional. The defendant gave sufficient cause
for delay and therefore, the delay can be condoned. In order to
adjudicate the matter on merits it is necessary to grant an opportunity
to defendant to file his reply to the Summons for Judgment and
therefore the delay is condoned. I, therefore, proceed to pass the
following order:
ORDER
1. The Notice of Motion no. 1378 of 2018 is allowed
subject to payment of costs of Rs.2,000/- (Rs. Two
Thousand only) to be paid to the plaintiff on next date
without fail.
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2. After payment of costs the defendant shall file his reply
to the Summons for judgement.
3. The delay in filing reply to the Summons for judgement
is condoned.
4. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 29-10-2021 City Civil Court, Gr. MUMBAI
Dictated on : 29-10-2021
Transcribed on : 09-11-2021
checked on : 09-11-2021
Signed on : 10-11-2021
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10.11.2021 at 05.30 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of judgment/
order
29.10.2021
Judgment/order signed by P.O. on 10.11.2021
Judgment/order uploaded on 10.11.2021
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