Final Order 1

Order Details: Notice of Motion
Pdf Text: 1/2 N/M No.1556/2018 in Su.1733/2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CNR No. : MHCC010088582018
NOTICE OF MOTION NO.1556/2018
IN
SUIT NO.1733 OF 2016
Saifuddin Hussenibai Ali Bhol ...Plaintiff
V/s.
Bharat Steel Furniture Works ...Defendant
Adv. Ms. Sapna Khobragade for plaintiff.
Adv. Mr.Qureshi Mohammed Aftab for defendant.
CORAM : HHJ Shri. G.R. Agrawal
CR No.3
DATED : 20.2.2019.
ORDER
(Dictated in open court)
By this notice of motion, the defendant is seeking condonation of
delay in filing the motion and in filing written statement. It has also
prayed to set aside the order dated 05.12.2017, whereby the suit was
ordered to proceed Exparte against it. The plaintiff has filed reply to
the motion.
2. Heard learned Counsel for the parties. Perused the record.
3. The Ld. Counsel for defendant has urged that the delay in filing
present motion is not intentional and the defendant has explained the
reasons in paragraph Nos. 2 to 9 of the affidavit. He pointed out the
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documents filed with the motion to show that the applicant's father was
suffering from Paralysis and he was under medical treatment. He
further submitted that due to the poor health of the defendant, he could
not take steps to prepare the written statement. He therefore prayed
that the motion be allowed.
4. The Ld. Counsel for plaintiff has urged that the explanation given
by defendant in the affidavit can not be accepted since the delay is of
501 days. It is pointed out that the medical documents filed with
affidavit are pertaining to the year 2014 and 2015 whereas the present
suit was filed in the year 2016. She, therefore, prayed that the motion
be dismissed.
5. Perusal of the affidavit filed in support of the motion shows that
the owner of defendant is aged about 77 years at present. As per
paragraph No.2 of the affidavit, he suffered Paralysis attack in the year
2014. Physiotherapy and medical checkup was continued after
discharge from the hospital. It is stated in paragraph No.4 that he was
under continuous treatment. It is stated in paragraph No.6 that since
the year 2016 till date, the defendant has been under regular
observations to maintain his health and to recover fully. Even as on
today the defendant cannot stand for long period of time and he cannot
move fully. The applicant is constituted attorney of the defendant he
has stated in paragraph no.7 that he was preoccupied with the
treatment of the defendant. Since the health of the defendant was not
good the applicant could not discuss the matter with him and he did not
know about the papers of suit property.
6. Ld. Advocate for plaintiff has rightly pointed out that documents
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of medical treatment are pertaining to the period of 2014 to 2015.
However, the said documents show that the condition of the father of
the applicant was serious in the year 2014. As discussed above, the
affidavit states about the treatment after discharge from the hospital,
such as physiotherapy. Therefore, even if the medical papers are older
than the date of filing the suit, it is possible that the father of applicant
had not recovered fully and he was not in position to prepare written
statement and give instructions to the advocate. Hence I do not find
any reason to disbelieve the explanation for delay given by the
defendant in the affidavit in paragraphs no.2 to 9. Hence the delay is
liable to be condoned and the defendant is entitled to one opportunity
to contest the suit on merits. However, considering the delay, the
defendant is liable to compensate the plaintiff by paying cost. Hence,
following order.
ORDER
1. Notice of motion no. 1556 of 2018 is made absolute in
terms of prayer clauses (a) to (d) subject to payment of
cost of Rs.5000/ to the plaintiff within four weeks from
today, failing which, the notice of motion shall stand
dismissed.
2. If the cost is paid, the written statement be taken on
record.
(G.R. Agrawal)
Judge, City Civil Court,
Gr. Bombay.
Dictated on : 21.2.2019
Transcribed on : 21.2.2019
Signed on : 22.2.2019
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“CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Mrs. TC Kamble
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room
No.)
HHJ Shri G.R.Agrawal (C.R.No.03)
Date of pronouncement of
Judgment/order
20/2/19
Judgment/Order signed by the P.O.
on
22/2/19
Judgment/Order uploaded on 22/2/19
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