Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1603/2018 ..1.. Suit No.41/2018
CNR No.MHCC010049782018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1603 OF 2018
IN
SUIT NO.41 OF 2018
Mr. Pramod Deorao Mether .. Plaintiff
Versus
Synthetic & Art Silk Mills Research
Association (SASMIRA) and Anr. .. Defendants
Rajendra H. Satale, Learned advocate for plaintiff
V.M. Parkar, Learned Advocate for defendant No.1
CORAM : HER HONOUR JUDGE
SMT. ULKA L. JOSHI
(COURT ROOM NO.31)
DATE : 4th May, 2018
: ORDER :
1. Notice of motion is for condonation of delay and leave to file
written statement.
2. Story put forth by defendant no.1 in short is that,
Writ of summons is served on 23/01/2018. However due to
involvement in other official and for want of approval defendant could
not file written statement within stipulated period. Delay is not
deliberate or intentional. He is having good case on merit. In such
eventuality if participation is not allowed much injustice will cause to
him. Hence, this notice of motion for condonation of delay and leave to
file written statement.
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NM No.1603/2018 ..2.. Suit No.41/2018
3. By filing reply plaintiff raised strong objection. To him,
notice of motion is not maintainable. Grounds shown are not justifiable.
Hence he prayed for dismissal of notice of motion.
4. Before entering into actual merit, let me quote that provision
of Order 8 Rule 1 of Civil Procedure Code is procedural and directory in
nature. Basic object of incorporation of Order 8 Rule 1 is to curb
mischief played by unscrupulous litigants who cause delay in disposal of
cases. Departure from time schedule is permissible in cases where
circumstances are beyond the control of parties or in cases when it is
required to prevent injustice to the other side. Reliance in that regard,
can be placed on the law laid down in case of Sambhaji and Others Vs.
Gangabai and others [(2008) 17 Supreme Court Cases 117] and in
case of State of Goa & Ors. Vs. H.B.Singh & Co. [2012 (4) ALL MR
750]. By keeping well in mind this basic requirement let me turn
towards factual aspects.
5. It is contention of defendant that he was busy in his official
duties as well as could not get approval from his superiors and therefore
written statement could not be filed within stipulated time. This
circumstance cannot be said to be beyond control of party or
exceptional circumstance. Hence, on that count defendant is not
entitled for condonation of delay.
6. Pertinent to note that rules of procedure are made to advance
the cause of justice. Equity and substantial cause of justice always
demands opportunity. Hence with a view to decide real point in
controversy once for all on merit and with a view to avoid multiplicity
of lis delay is require to be condoned. However, considering the
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NM No.1603/2018 ..3.. Suit No.41/2018
negligence at the hands of defendant cost is require to be imposed.
Hence I pass following order:
: ORDER :
1. Notice of Motion No.1603 of 2018 is made absolute in terms of
prayer clause Nos (a) and (b) subject to cost of Rs2,000/ by defendant
to plaintiff on or before next date.
2. After payment of cost permission is granted to defendant for filing his
written statement.
3. Defendant is directed to file the written statement on next date and
that too by payment of cost.
(Pronounced in Open Court)
(Smt. U. L. Joshi)
Judge
City Civil & Sessions Court,
Date : 04/05/2018 Gr. Bombay
Typed on : 04/05/2018
HHJ signed on :
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