Order 2

Order Details: Notice of Motion
Pdf Text: NM.No.4836/2024 - 1 - SU.No.1600/2019
MHCC010187352024
Presented on : 16-10-2024
Registered on : 16-10-2024
Decided on : 29-04-2026
Duration : 01Y 06M 13D
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.4836 OF 2024
IN
S. C. SUIT NO.1600 OF 2019
1. Munira Begum Kadri
2. Sayed Shaaz Alam Kadri
.. Applicant/Org.
Defendant Nos.4 & 6.
In the matter between
Sahebrao Gangadhar Kadam .. Plaintiff.
Versus
1. Sayed Mohamed Shah Kadri and
Others. .. Defendants
Appearance :-
Ld. Advocate Ms. Poonam Pal for the Plaintiff.
Ld. Advocate Mustafa Bohra for the Defendants No.2, 4, 5, 6, 8 and 11.
CORAM: HIS HONOUR JUDGE
S.M. BUKKE
COURT ROOM NO.03
DATE: 29th April, 2026.
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O R D E R
(Dictated and Pronounced in open Court)
1. The Defendant Nos.4 and 6 in Suit No.1600 of 2019 has
preferred present Notice of Motion seeking condonation of delay of 128
days in filing the Written Statement.
2. The Plaintiff has filed the present suit for perpetual
injunction. The defendant Nos.4 and 6 in their affidavit in support of
Notice of Motion No.4821 of 2024 submitted that plaintiff is in illegal
possession of suit premises based on deed of assignment dated
07.03.1966. It is a colourable, sham and bogus document. The suit
was filed on 02.05.2019. On 26.11.2019 one Advocate P.R.Patil claim
himself as an advocate for defendants including defendant No.8. The
defendant had never received writ of summons and never engaged
Advocate P.R. Patil. Despite of that Advocate P.R. Patil filed forged
Vakalatnama on 24.01.2020. Subsequently, due to nationwide
Lockdown matter could not taken up for hearing until 26.11.2020. The
defendant was unaware about the present suit until 07.07.2021. The
delay is caused due to wrong representation of Advocate, Covid-19
pandemic and communication gap between defendant and his
advocate. The defendants came to know about present suit on
31.05.2021 and immediately on 04.10.2022 he has filed written
statement on record.
3. The delay is not due to negligence, delay cause due to seek
assistance from advocate, Covid-19 pandemic, the balance of
convenience lies in favour of defendant if delay is not condoned,
irreparable loss will cause to him. Therefore, defendants prayed to
condone the delay.
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4. On the overleaf of present notice of motion, the plaintiff
has filed his reply and strongly resisted the notice of motion on the
ground that the writ of summons was duly served upon defendant
Nos.4 and 6. They have not filed written statement within 90 days.
The defendants are negligent. It is unnecessary harassment of plaintiff.
Condoning such delay will defeat the very purpose of speedy justice.
Therefore, plaintiff craved to dismiss the notice of motion with heavy
costs.
5. Heard the learned Advocates for plaintiff as well as
defendants. The learned Advocate for defendant submitted that service
of writ of summons is necessary. No writ of summons served upon
defendants. Therefore, due to non-compliance no written statement
order cannot be passed. He also submitted that the defendant should
be allowed to contest the suit by filing written stat. In support of his
argument he relied upon the verdict of Hon’ble Bombay High Court in
case of Tardeo Properties Pvt. Ltd. Vs. Bank of Baroda reported in 2007
SCC OnLine Bom 614 wherein it is observed that the service of the writ
of summons being absolutely necessary for affording opportunity to the
defendant to contest the suit, in the absence of compliance thereof,
there cannot be an occasion to proceed ex parte against the defendant
in a suit filed on the Original Side of this Court. The decision of the
Apex Court in Sangram Singh’s case is of no help to the respondents to
justify the impugned Judgment.
Perused record.
6. On perusal of record it appears that the Written Statement
was not filed within the period prescribed under Order VIII Rule 1 of
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the Code of Civil Procedure, 1908, which mandates filing within 30
days from service of summons, extendable up to 90 days.
7. The present suit is instituted on 02.05.2019. The writ of
summons was served upon defendant and Advocate P.R. Patil appeared
for defendant. Subsequently, after Covid-19 Advocate Mustafa appeared
for defendant. Defendant on 10.11.2021.
8. The delay mention above of 128 days has been caused due
to bonafide reasons as stated above i.e. circumstance beyond control of
the defendant. The delay occurred due to wrong representation of
Advocate, Covid-19 Pandemic and communication gap between
defendant and his advocate.
9. The delay is neither deliberate nor willful but occasioned
by bona fide circumstances. The Defendant has acted with reasonable
diligence, and no mala fides or gross negligence are attributable.
10. There is no inordinate delay, therefore, “Sufficient cause”
under Section 5 of the Limitation Act, 1963 must be construed liberally
to advance substantial justice. The word “shall” in Order VIII Rule 1
CPC is directory, not mandatory, and must be interpreted to advance
the cause of justice.
11. Refusal to condone the delay would result in grave
prejudice and miscarriage of justice. Procedural rules are intended to
facilitate adjudication on merits, not to obstruct it.
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12. Unless the reliefs prayed for are granted, irreparable loss
and prejudice will be caused to the Defendant, which cannot be
compensated. The balance of convenience lies in favour of the
Defendant, who has a strong case on merits.
13. On perusal of the record and submissions, this Court finds
that the delay is attributed to wrong representation of Advocate, Covid-
19 pandemic and communication gap between defendant and his
advocate. The Defendant has acted with reasonable diligence. The
length of delay is not inordinate and not decisive; what is material is
the sufficiency of the cause shown. No mala fides or gross negligence
are demonstrated.
14. The Hon’ble Supreme Court in
Salem Advocate Bar
Association, T.N. v. Union of India has clarified that the use of the word
“shall” in Order VIII Rule 1 CPC is directory and not mandatory, and the
provision must be interpreted in a manner that advances the cause of
justice rather than defeats it.
15. If the writ of summons is not served then the Court cannot
proceed ex parte against the defendants. In present suit there is no
affidavit of service filed by plaintiff to show that the writ of summons
served upon the defendants. It is the case of defendants that the
Advocate P.R. Patil was never engaged by the defendants. Therefore,
the ratio laid down in aforesaid cited case law Tardeo Properties Pvt.
Ltd. (supra) is applicable to case in hand. Therefore, this is not fit case
to impose the cost upon the defendant.
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16. In the present case, refusal to condone the delay would
result in grave prejudice and miscarriage of justice. Procedural rules are
intended to facilitate justice, not to obstruct it. The notice of motion
deserves to be allowed. Hence, I pass following order:
O r d e r
1. Notice of Motion No.4836 of 2024 made absolute in terms of
prayer clause (a).
2. Accordingly, Notice of Motion No.4836 of 2024 stands disposed
off.
(S.M. BUKKE)
Judge,
City Civil Court,
Date: 29.04.2026 Mumbai.
1. Pronounced on : 29.04.2026
2. Dictated directly on computer : 29.04.2026
3. Checked on : 29.04.2026
4. Printed on : 29.04.2026
5. Signed on : 29.04.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME 29.4.2026/6.30 p.m.
NAME OF STENOGRAPHER (Grade-1) (Mrs. Pradnya S. Naik)
Name of the Judge (With Court room no.) Shri S.M. BUKKE
(C.R. No.03)
Date of Pronouncement of JUDGMENT/
ORDER
29.4.2026
JUDGMENT/ORDER signed by P.O. on 29.4.2026
JUDGMENT/ORDER uploaded on 29.4.2026
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