Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1686 OF 2019
(CNR NO. MH CC01-004624-2019)
IN
S.C. SUIT NO. 287 OF 2017
Smt. Ishraji Devi w/o Shri Shiv ]
Prasad Mishra. ].. Plaintiff.
V/s.
M/s. Kazi Realtors Pvt. Ltd. and ]
others. ]..Defendants.
Advocate Mr. A. R. Pandey for the plaintiff.
Advocate Mr. Patel i/b Diamondwala and Co. for defendant No.1.
Advocate Mr. B. N. Shukla for defendant No.2.
Advocate Mr. Vijay Mishra for defendant No.3.
Advocate Mr. Pathak h/f Advocate Mr. Kandekar for defendant
No.5/MHADA
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 11th OCTOBER 2022
ORAL ORDER
This Notice of Motion has been taken out by defendant
No.3 for condonation of delay in filing written statement.
2 The Defendant No.3 has filed affidavit in support of Notice
of Motion, wherein he has stated that writ of summons has been served
upon defendant No.3. The grandfather of defendant No.2 had filed suit
being RAD Suit No.2581 of 1980 against his father and the said suit has
been decreed on 13.05.1980 by consent terms. The papers and
proceedings of the said suit was not in his possession. Hence, he could
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not file the written statement in the present suit. With great difficulty
and search, the defendant No.3 could obtain the certified copies of the
consent terms and decree only on 08.03.2019. In view of the facts and
circumstances, the written statement could not filed within time.
Hence, prayed for allowing Notice of Motion.
3. The plaintiff has filed reply to the Notice of Motion. It is
contended that the defendant No.3 is the husband of the plaintiff and
he is fully aware and conversant with the facts involved in the present
suit. However, due to certain reasons, the defendant No.3 has not filed
his written statement in the suit. If the defendant No.3 is allowed to file
his written statement, the defendant No.3 could be able to put certain
material and relevant facts which shall be certainly helpful to adjudicate
the suit on its own merits. Therefore, the written statement of
defendant No.3 is very essential and necessary. The plaintiff has no
objection to file the written statement of defendant No.3.
4. The defendant No.2 has filed affidavit in reply to the Notice
of Motion. The Notice of Motion taken out by the defendant No.3 is
misconceived, bad-in-law, vexatious, untenable and not maintainable
and liable to be dismissed. The plaintiff’s suit is itself is not
maintainable, as she has no
locus-standi to file present suit and Notice
of Motion. The plaintiff and the defendant No.3 in collusion with each
other and plaintiff is the wife of defendant No.3 who has not challenged
the documents executed in favour of defendant No.2 and he denied all
the contents of the plaint. The defendant No.3 has failed to make out
any ground and cogent reason for condoning the delay and prayed for
dismissal of the Notice of Motion.
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5. Heard the learned advocate for the plaintiff and the learned
advocates for defendant Nos.1 to 3 and 5.
6. Perused plaint and Notice of Motion. It appears that the
plaintiff is the wife of defendant No.3. It is nowhere stated by the
plaintiff or this defendant that they are residing separate, but on the
contrary, the documents on record disclose that the plaintiff and
defendant No.3 are residing as husband and wife. They are in collusion
with each other filed this Notice of Motion. The reason mentioned in
the Notice of Motion in respect of Suit being RAD Suit No.2581 of 1980
and the said suit was decreed on 13.05.1980. The defendant No.3 failed
to bring on record what is connection with Suit No.2581 of 1980 and
the present suit. The defendant No.3 has no any concerned in respect of
the suit. Therefore, reason mentioned in Notice of Motion is not just
and proper. It appears that defendant No.3 has not brought on record
how much delay caused in filing written statement and reasons for
delay. It appears that no reasonable ground mentioned by the defendant
No.3 for condonation of delay in filing Notice of Motion. In such
circumstances, Notice of Motion is liable to be dismissed, as the
defendant No.3 in collusion with plaintiff has filed this Notice of Motion
to avoid the abuse of process of law. With this, I proceed to pass the
following order:-
ORDER
1. Notice of Motion No. 1686 of 2019 is dismissed
with costs.
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2. Notice of Motion No. 1686 of 2019 stands
disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 11/10/2022 Gr. Bombay.
Dictated on : 11/10/2022
Transcribed on : 12/10/2022
Signed on : 14/10/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/10/2022 At 11.48 A.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
11/10/2022
Judgment/Order signed by P.O. on 14/10/2022
Judgment/Order uploaded on 15/10/2022
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