Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1575-2021
MHCC010045842019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1672 OF 2019
IN
S.C.SUIT NO.1052 OF 2017
Vikas Ganpati Kalantre & ors. … Plaintiffs
Vs.
Ganpati Krushna Kalantre & Ors. … Defendants
Appearances:
Ld. Adv. Shri.Bedekar for plaintiff.
Ld.Adv.Smt.Sheetal Ugale for Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.V. PATIL
(C.R.NO.09)
DATE : 22th September 2021
ORDER
1. This Notice of Motion is filed by defendant no.1 and 2 with
request that they may be allowed to file Written Statement. It is their
submission that though both the defendants have appeared on record
but suit summons is not duly served upon them. Therefore, in
misunderstanding they could not file Written Statement within
limitation. Both the defendants were expected that the plaintiff will
serve suit summons upon them. Thereafter, they will file written
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statement. Therefore, they requested to condone delay for filing written
statement which is of 659 days.
2. Plaintiff filed reply and strongly objected the Notice of Motion. It
is submission by the plaintiff that before filing suit defendant nos.1 and
2 have filed Caveat. Therefore, plaintiff has served suit summons on
advocate who has filed Caveat as per rules. Therefore, there is no need
for plaintiff again to serve fresh suit summons on defendants. The
plaintiff further submitted that the Hon’ble Bombay High Court in
Suresh Vs.Municipal Corpn.of Gr.Mumbai 2013(6) Mh.L.J. 845, held
that the filing of Vakalatnama and appearance of the parties through
advocate amounts to service of summons for all the purposes. In such
circumstances, there is no need to serve fresh suit summons on
defendants. The plaintiff further submitted that as per the ratio laid
down by Hon’ble High Court, now there is no need to serve fresh suit
summons on defendants but just to prolong the trial defendants have
caused delay.
3. Heard learned advocate of both sides.
4. The plaintiffs have filed suit against defendants. Defendant no.1
and 2 are contesting parties. Before filing suit both of them have filed
caveat. They have not denied the service of notice on advocate who
appeared in Caveat. However, Roznama dated 17/4/2018 shows that on
that day both the defendants appeared through advocate. As per the
ratio laid down by Hon’ble High Court appearance of parties through
advocate is sufficient. In such circumstances, there is no need to issue
fresh summons. In this case, also the plea of the defendants is only on
the ground of service of summons but when the defendants have
appeared in the matter on 17/4/2018 on that day they got knowledge
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regarding proceedings against them and from 17/4/18 their appearance
can be counted on record. The defendants themselves submitted that
there is 659 days delay in filing written statement. The delay is too long
& reason given by defendants is not acceptable. However, considering
contesting nature of parties, if opportunity is not granted to defendants
to contest the suit, certainly it would cause prejudice to them than
plaintiffs. Because of delay at the hands of defendants daily trial is held
up. That can be compensated on imposing compensatory costs on
defendants. Therefore, Notice of Motion is allowed subject to following
conditions . Hence, following order:
ORDER
1. Notice of Motion No.1672 of 2019 is made absolute
subject to costs of Rs.2000/- to the plaintiffs, which
should be paid as Rs.1000/- each by both
defendants.
2. Defendants are directed after paying costs
immediately to file Written Statement without any
delay.
3. Notice of Motion No.1672 of 2019 stands disposed
of accordingly.
(C.V. PATIL)
Ad-hoc Judge,
Date : 22/09/2021 City Civil Court, Gr. Bombay
Dictated on : 22/09/2021,
Transcribed on : 22/09/2021,
HHJ signed on : 23/09/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
24/9/2021 5.00p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR 09)
Date of Pronouncement of JUDGEMENT
/ORDER
22/9/2021
JUDGEMENT /ORDER signed by P.O. on 23/9/2021
JUDGEMENT /ORDER uploaded on 24/9/2021
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