Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 150718 in LCSU No.1762013
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1507 OF 2018
(CNR No.MHCC010047262018)
IN
LONG CAUSE SUIT NO.176 OF 2013.
(CNR No.MHCC010002232013)
Mrs. Sandhya Chandrashekar Tembulkar }...PLAINTIFF.
Versus
MCGM and Ors. }...DEFENDANTS.
Shri.Singh, learned advocate for the plaintiff.
Shri.Suryawanshi, learned advocate for defendant No.1/MCGM.
CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 18/01/2019)
1. This Notice of Motion is taken out by defendant/MCGM for
setting aside order dated 10/09/2014 passed in the matter for
proceedings with the suit without written statement of defendant/
MCGM and for permitting defendant/MCGM to file its written
statement by condoning the delay of three years and five months. Read
the affidavit filed in support. Read the reply filed by the plaintiff. Heard
learned Shri.Suryawanshi, advocate for the defendant No.1/MCGM and
learned Shri.Singh, advocate for the plaintiff. Perused the entire record.
2. Admittedly, there is a delay of more than three years and
five months for filing written statement by defendant No.1. The only
point for my consideration is whether defendant No.1 has shown
sufficient cause to condone the delay?
3. Learned advocate for defendant No.1 argued that due to
heavy work load, defendant No.1 could not filed its written statement
and there was no intentional delay on the part of defendant No.1 in not
filing written statement within statutory period due to which, it is
necessary to allow defendant No.1 to file its written statement by
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setting aside the order passed in the matter to proceed further without
written statement of defendant No.1.
4. As against this, learned advocate for the plaintiff argued
that any just reason is not mentioned in the affidavit filed in support of
the Notice of Motion for condoning the delay hence, Notice of Motion is
liable to be rejected.
5. Admittedly, defendant No.1 is a public body however, it
can not be a ground for excusing the statutory requirement. In the
affidavit filed in support of Notice of Motion, SubEngineer Jadhav of 'F'
South Ward of Maintenance and Repair Department of defendant No1
has stated that delay in filing written statement has caused due to heavy
work load. Roznama of the proceedings shows that suit was dismissed
indefault for want of prosecution as per the order dtd.15/11/2014 and
it was restored on the same day as per the order passed on application
filed by the plaintiff. Roznama further shows that plaintiff has filed
affidavit of examinationinchief of PW1 on 12/12/2014 and thereafter
matter was adjourned from time to time as PW1 was absent. It is also a
matter of record that suit was again dismissedindefault as per order
dtd.18/03/2016 & it is restored as per order dtd.21/04/2016 passed in
the Notice of Motion taken out by the plaintiff. Roznama further shows
that matter was thereafter again adjourned from time to time at the
instance of plaintiff for filing documents and evidence. Apparently,
plaintiff is also not diligent so far as trial of suit is concerned.
6. As mentioned earlier, suit was dismissedindefault twice
and it came to be restored. It does not appear that there is intentional
delay on the part of defendant No.1 in not filing written statement
within a statutory period. It is necessary to give fair opportunity to
defendant no.1 to contest the suit on merits by filing its written
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statement as it is now well settled that the provisions of Order 8 Rule 1
of CPC are directory and not mandatory. Interest of justice will be
protected if defendant No.1 is directed to pay certain costs to the
plaintiff while accepting the prayers made in this Notice of Motion. For
these reasons, an order.
O R D E R
Notice of Motion No.1507/2018 is allowed subject to cost
of Rs.1,000/(Rs.One Thousand Only) which should be payable
by defendant No.1 to plaintiff .
The defendant No.1 shall pay/deposit costs as mentioned
above on or before next date failing which, this Notice of Motion
shall be deemed to have been rejected.
Date: 18/01/2019. (P.P.RAJVAIDYA)
Dictated on : 18/01/2019. Judge, C.R.No.12,
Transcribed on : 18/01/2019. City Civil Court,
Checked on : 18/01/2019. Gr.Bombay.
Signed on : 19/01/2019.
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4 NM 150718 in LCSU No.1762013
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
18/01/2019 at 11.30 a.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 17/01/2019
Order signed by P.O. on 18/01/2019
Order uploaded on 18/01/2019
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