Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1523/20 in Suit 1856/13
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1523/2020
(CNR NO. MHCC010050212020)
IN
S.C. SUIT NO.1856/2013
Deepashri Dilip Pawaskar ...Plaintiff
Versus
1. Rajan Dashrath Navghare
2. Sanjay Dashrath Navghare
3. Vijay Dashrath Navghare
4. Buildarch Land Developers Pvt. Ltd. ...Defendants
Appearances :
Adv. Mr.S.S. Redekar for plaintiff.
Adv. Mr Anish Deshpande for defendant no.1.
Adv. Mr. H.P Pandey for defendant no.3.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 07.10.2021.
ORDER
1. Defendant no.1 has filed instant Notice of Motion seeking
following reliefs :
(a) This Hon'ble Court may be pleased to set aside orders dated
29th August, 2015 and 30th January, 2019 respectively.
(b) This Hon'ble Court may be pleased to condone the delay of
2516 days and allow the defendant to file Written Statement.
(c) In the alternative, this Hon'ble Court may be pleased to treat
the Affidavit in Reply of defendant no.1 dated 26.6.2014 to
Notice of Motion No.2725 of 2013 as the Written Statement
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on behalf of defendant no.1.
(d) That this Hon'ble Court may be pleased to pass any such
order as the nature and circumstances of the case may
require.
(e) That this Hon'ble Court may be pleased to award cost of this
Notice of Motion.
2. It is contended by the defendant no.1 that, he was served
with legal notice dated 24.9.2012 issued by the plaintiff's advocate
demanding 1/4th share in the suit property. He has duly replied to her
notice by reply dated 31.1.2013. The plaintiff on 25.4.2013, filed
instant suit for partition and separate possession of her 1/4th share in
the suit property. In the aforesaid suit, the plaintiff took out Notice of
Motion No.2725/2013 for temporary injunction. On 10.5.2013, he has
appeared through his advocate. Thereafter on 30.10.2013, the suit
summons were served upon him. He informed about the said fact to his
advocate and gave instructions accordingly.
3. It is further contended that, on 25.5.2014, he has filed
reply to the Notice of Motion 2725/13 opposing the Notice of Motion. It
is further contended that, he was under impression that by filing reply,
his pleadings are completed and nothing more required to be filed. But
it is alleged by the defendant no.1 that, he has appeared on several
occasions then he has realized that his advocate was not appearing
regularly in the matter. Therefore, he tried to contact his advocate Mr.
Jadhav, but his response was not satisfactory. Therefore, on 5.12.2019,
he personally appeared in the court. On that day, the court orally
directed him to keep present his advocate on next occasion. Therefore,
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he realized that, his advocate Mr. Jadhav gave him false assurances and
in fact, he was not looking after the matter. Therefore, due to
negligence and careless attitude of his advocate Mr. Jadhav, he decided
to engage another advocate and accordingly, he engaged Adv. Mr.
Aneesh Deshpande, after obtaining no objection from earlier advocate.
His advocate Mr. Deshpande on 21.1.2020 filed Vakalatnama and
obtained certified copies of entire proceedings.
4. It is contended that, his advocate after perusal of Roznama
of the proceedings realized that, earlier advocate had appeared only for
seven times without filing WS on his behalf and therefore, the matter
was proceeded for evidence. It is contended by him that, he was not
apprised with the true and correct status of the suit by earlier advocate
and therefore, the suit was proceeded exparte against him.
5. It is contended that, the plaintiff already received her share
during the lifetime of his father in the form of Room no.4, which was
subsequently redeveloped and the plaintiff is in possession of Flat
no.302 in lieu of her tenancy rights. Therefore, the defendant no.1 now
contended that, the plaintiff has no right of further share in the suit
property. Thus, the defendant no.1 is having good defence which needs
to be adjudicated after allowing him to file his WS.
6. It is further contended that, due to negligence of the
advocate, parties should not be suffered. If his WS is taken on record,
no prejudice or harm will be caused to the plaintiff. In the event his WS
is denied, grave and irreparable loss will be caused to him, which
cannot be compensated in terms of money. Therefore, the defendant
prayed for setting aside the orders dated 29.8.2015 and 30.1.2019 by
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which the suit was proceeded without his WS. In alternative, he prayed
for considering his affidavit in reply filed by him to the Notice of Motion
2725/2013 as his WS.
7. The Notice of Motion is opposed by the plaintiff by filing
reply. It is specifically contended that, the defendant no.1 has made a
false statement. In fact, he has appeared along with his advocate and
with defendant no.3. He was well aware about the entire proceedings.
Defendant no.1 created false story by putting entire blame on his earlier
advocate and wanted to gain sympathy of the court. The defendant in
order to avoid to give share to the plaintiff somehow trying to delay the
proceedings. Therefore, the plaintiff prayed for rejection of the Motion.
8. It is further contended that, even if the reply which is filed
by the defendant no.1 to the Notice of Motion 2725/13, is considered
as his WS, in that eventuality also there is a delay in filing the WS.
Hence, that cannot be considered at all. Hence, the plaintiff prayed for
rejection of the Motion with compensatory costs.
9. Heard both sides. Perused Notice of Motion, reply as well
as Roznama of entire proceeding. Admittedly, the suit summons were
served upon the defendant no.1 on 30.10.2013. On perusal of the
Roznama it appears that, the defendant no.1 had appeared through
advocate Mr. Anand Jadhav on 10.5.2013. On 15.11.2013, son of
defendant no.1 was present. On 10.12.2013, 30.1.2014 and 26.6.2014,
Advocate of the defendant no.1 was present. On 26.6.2014, he filed
reply to the Motion. On 27.3.2014, 30.7.2017 and 14.11.2017 none
present for defendant no.1. On 27.1.2017, Notice of Motion 2725/2013
was made absolute in terms of prayer clause(b). On that day, the
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defendant no.1 was present.
10. Inspite of service of writ of summons on the defendants, as
no WS was filed therefore on 29.8.2015 the suit was proceeded without
WS of the defendants. On 10.12.2015, advocate for the defendant no.1
was present. He sought time to take steps in the matter. Thereafter
from 2.3.2016 to 23.9.2016, none appeared for any of the defendants.
11. On 23.9.2016, advocate Mr. H.P. Pandey for defendant
no.3 was present. He filed Vakalatnama on behalf of the defendant no.3
and matter was posted for Exparte arguments. On 25.11.2016, advocate
of the defendant no.3 tendered draft Motion for condonation of delay in
filing his WS, which was allowed on payment of costs of Rs.9500/ and
his WS was taken on record below Exh.13. Thereafter, since
26.10.2017, the matter was posted for framing of issues. On that day,
the defendant nos.1 and 3 in person were present. On 3.5.2018, issues
came to be framed. Since 26.9.2018, the defendant nos.1 and 3 both
were present together till 30.1.2019. On that day again no WS order
was passed against the defendant nos.1,3 and 4.
12. In the meantime, the matter was posted for recording of
crossexamination before Court Commissioner Adv. Ashish Naik. On
6.2.2019, advocate for the defendant no.3 did not appear for cross
examination of the plaintiff and therefore, his side was closed and Court
Commissioner was discharged. Thereafter, the matter was posted for
defendants' evidence. Since then, although the defendant no.1 was very
much present in the court along with defendant no.3 but till
21.10.2020, no steps were taken by the defendant no.1 to set aside the
no WS order.
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13. I have also perused the reply given by the defendant nos.1
and 3 to the legal notice issued by the plaintiff before filing of the Suit
as well as WS of the defendant no.3. It appears that, both of them took
common ground that the plaintiff already got her share by way of
tenancy right of Room no.4 and presently she is in occupation of Room
no.302 after redevelopment of the building. Therefore, the plaintiff is
not entitled for partition.
14. On perusal of Roznama of entire proceeding, it appears to
me that, in order to delay the proceedings, the defendants purposefully
did not take appropriate steps. Evidence of the plaintiff was closed in
the year 2016 itself. Although, the defendant no.1 and 3 both were
appearing together but defendant no.1 purposefully did not file his WS.
In fact, as health condition of the plaintiff was not supporting her to
attend the court, therefore Court Commissioner was engaged for
recording of her crossexamination. On that day also, defendant no.3
without any justification did not appear for crossexamination of the
witness. Thus, from the conduct of the defendants, it appears that they
are avoiding to decide the matter on its merits.
15. In the present Motion, the defendant no.1 took a ground of
negligence of his earlier advocate. In fact, record shows that, the reply
was filed by his advocate to the Notice of Motion. Moreover, there is no
complaint or proceeding filed against the earlier advocate by the
defendant no.1. Aforesaid material goes to show that, the application is
drafted in anticipation that if the defendant blames his advocate, he will
get relief from the court. In fact, the conduct of the defendant no.1
does not deserve any leniency and that he cannot be permitted to file
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separate WS.
16. Admittedly, the defendant no.1 filed reply to the Notice of
Motion No. 2725/2013. However, it was filed on 26.6.2014. He was
served with suit summons on 30.10.2013. Even if, I consider to allowing
his reply to be as WS, still there is delay which has not been explained
at all. But only with an intention to grant one more opportunity to the
defendant no.1 and in order to decide the matter on its merit, his reply
to the Notice of Motion 2725/13 can be taken on record by way of his
WS, but that too with compensatory costs of Rs.15,000/. Thus, I
proceed to pass following order:
ORDER
1. Notice of Motion No.1523/2020 is partly allowed.
2. The reply filed by defendant no.1 to Notice of Motion No.
2725/2013 is treated as his W.S., subject to payment of costs of
Rs.15,000/ to the plaintiff within a period of 15 days from the
date of this order.
3. Defendant no.1 to bear the costs of the Motion.
4. In view of above, the Notice of Motion is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 7.10.2021 Greater Bombay.
Dictated on : 7.10.2021
Typed on : 7.10.2021
Draft Submitted on : 8.10.2021
Signed on : 11.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
11.10.2021, at 4.10 p.m (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 7.10.2021
JUDGMENT/ORDER signed by P.O. on 11.10.2021
JUDGMENT/ORDER uploaded on 11.10.2021
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