Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.1768/2019
MHCC010048362019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 1768 OF 2019
IN
S.C. SUIT No. 1190 OF 2015
Shivcharan Parasnath Shukla … Plaintiff.
VERSUS
1.Devicharan Parasnath Shukla
2.Ramsundar Parasnath Shukla … Defendants.
Appearance
Mr. Ashok Mishra, learned Advocate for the plaintiff.
Mr. Tripathi, learned Advocate for both the defendants.
CORAM : HIS HONOUR JUDGE
SHRI. R.A. SASNE (C.R.NO.62)
Date : 4th July, 2022
O R D E R
This notice of motion is taken out by the plaintiff to discard
the written statement filed by the defendants and to proceed the suit
without written statement.
2. It is the contention of the plaintiff that on 04.08.2016, the
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suit was for filing of written statement. When the suit reached to the
stage of filing of evidence, the Advocate for the plaintiff submitted to
the Court that written statement is not filed, to which it was informed
that the written statement is already filed. The plaintiff had no
knowledge about the filing of the written statement. Therefore, after
verifying the record, it is revealed that the matter was adjourned to
07.04.2017 for no written statement order. On 07.02.2017, defendant
Nos.1 and 2 by playing mischief by taking the case on board and
without giving notice to the plaintiff filed written statement, the point
of limitation was not considered. Till the date copy of written
statement is not served on the plaintiff. The written statement is
beyond limitation. With these contentions, the plaintiff has prayed to
discard written statement filed on record and the suit shall be
proceeded without statement.
3. The defendants by reply affidavit resisted this notice of
motion. It is the contention of the defendants that the allegation in the
notice of motion amounts to contempt of Court and therefore, contempt
notice shall be issued against the plaintiff. The statement as stated in
the notice of motion are not reflected in the roznama therefore, they are
imaginary and they are made to mislead the Court. In presence of the
plaintiff's Advocate, the suit was adjourned to 13.09.2016 for filing
written statement. As on 13.09.2016 holiday was declared, therefore,
the case was adjourned to 14.09.2016 and on 14.09.2016, it was
adjourned to 10.11.2016. Thereafter, on 07.02.2017, it was adjourned
to 07.04.2017 for filing written statement. On 28.02.017, the case was
taken on board and written statement was filed. On 10.11.2017, the
plaintiff was present when the suit was adjourned to 06.03.2018 for
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issues. On 06.03.2018 also the plaintiff was present then the
defendants undertook to supply the copy of written statement to the
learned Advocate for the plaintiff. Thereafter, by framing issues, the
suit was adjourned to 27.09.2018 for the plaintiff's evidence. On
27.09.2018, the plaintiff's Advocate sought time to file evidence.
Thereafter, this notice of motion is filed by the plaintiff. The plaintiff
do not want to lead evidence and therefore, to protract and delay the
hearing of the suit this notice of motion is filed. As the suit is posted for
evidence, the plaintiff is estopped from taking out such notice of
motion. By this notice of motion, the order passed by the Court of
taking written statement on record cannot be recalled. The defendants
denied that the written statement is beyond limitation. With these
contentions, the defendants have prayed to dismiss the notice of
motion.
4. Heard learned Advocate for the plaintiff and learned
Advocate for the defendants.
5. It is the contention of the plaintiff that written statement is
taken on record though there was delay and therefore, it shall be
discarded. Therefore, it becomes necessary to go through the roznama
to verify the record of the case. Roznama shows that on 07.02.2017,
the suit was adjourned for passing no written statement order. On
28.02.2017, defendant No.2 appeared and filed Vakalatnama by taking
the case on board. They also filed written statement. Same was taken
on record. Thereafter, the suit was adjourned to 07.04.2017.
Thereafter, on 17.07.2017, the suit was adjourned for framing of issues.
On 10.11.2017, the plaintiff and the defendants were present. On
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06.03.2018, the plaintiff and the defendants were present. The
defendants undertook to supply a copy of written statement to the
plaintiff. Accordingly, the suit was adjourned to 05.07.2018 for framing
of issues. On 05.07.2018, the plaintiff and defendant were present,
issues were framed and the suit was adjourned to 27.09.2018 for
evidence. On 27.09.2018, the plaintiff and the defendants were present
and the plaintiff sought time for filing evidence. Time was granted as a
last chance. On 18.12.2018, the plaintiff filed present notice of motion.
6. From the aforesaid record of roznama, it appears that after
filing of written statement, the plaintiff appeared time to time and had
knowledge about the filing of the written statement. Even on
06.03.2018 there was undertaking by the defendants to supply a copy
of written statement to the plaintiff. The said undertaking was made in
presence of the plaintiff. In spite of this fact, though having knowledge
of filing of written statement, the plaintiff has taken out this notice of
motion after the suit reaches to the stage of evidence. Before filing of
this notice of motion, no objection was raised for acceptance of written
statement. Record shows that the defendants on 28.02.2017 by taking
case on board have filed written statement. They have not filed the
notice of motion for condonation of delay. Learned Advocate for the
defendant submits that submission in respect of delay was oral. There
is no record to that effect. It appears that point of delay was not
agitated before the Court. The suit summons was prepared on
12.05.2017. Affidavit of service dated 08.05.2015 reads that, defendant
No.1 has not accepted the service. Defendants filed Vakalatnama on
28.02.017 and they filed written statement on the same date. Till then
the suit was not proceeded exparte. Except the aforesaid service
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affidavit, there is no other affidavit of service explaining the service of
suit summons. Hence, it is not possible to draw inference that there
was any delay or inordinate delay in filing written statement. Already
by his action on 28.02.017 my predecessor has taken on record the
written statement, the point of delay ought to have been considered at
the time of filing written statement. No submission in that regard
appears to have been made. As aforesaid, the affidavit of service of suit
summons is not sufficient to draw any inference with respect to delay in
filing written statement. There is also no submissions in the roznamas
to show that service of summons has been waived by the defendants.
Hence, in my view, the written statement which is already accepted and
taken on record cannot be discarded. Therefore, this notice of motion is
liable to be dismissed. In the result, I pass following order:
O R D E R
1. Notice of Motion No.1768 of 2019 is dismissed.
2. Costs shall follow the event.
3. Notice of Motion No.1768 of 2019 is disposed of accordingly.
(R.A. SASNE)
Judge,
City Civil Court,
Date : 04/07/2022 Mumbai.
Dictated on : 04/07/2022
transcribed on : 05/07/2022
Signed on : 05/07/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
06.07.2022 at 11.30 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 04/07/2022
Order signed by P.O. on 05/07/2022
Order uploaded on 06/07/2022
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