Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010043612018
CNR NO. MHCC010043612018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1379 OF 2018
IN
SUMMARY SUIT NO.452 OF 2016
Mr. Ashish Jayantilal Sheth ] … Plaintiff
V/s.
Mrs. Kuntal Pratik 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 her husband was not well since
last four years. He was undergoing physiotherapy for Rt. Hemiplegia.
Therefore she was 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. Therefore, the reply could not be filed
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in due 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 she is not allowed to file her reply she 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. She 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 on affidavit in support of Notice of Motion
averred that due to medical condition of her husband she could not file
her 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 she could not give instructions to his Advocate due
to medical condition of her husband and she was required to take care
of defendant. She 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
she is having good chance of the succeeding in the present suit and
therefore she 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 her 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. 1379 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 05.40 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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