Final Order 2

Order Details: Notice of Motion
Pdf Text: Notice of Motion No. 1732 of 2023
in S.C. Suit No.1742/2015. 1 Order.
MHCC010050222023
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1732 OF 2023
IN
S.C. STAMP NO. 1742 OF 2015
Smt. Prabha Vijay Niwate ... Plaintiff
V/s.
Shri. Subhash S. Kamble ... Defendant
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 16/10/2023.
Appearance:-
Ld. Advocate Shri. P.G. Parkar for the plaintiff.
Ld. Advocate Smt. Pallabi Chatterjee h/f Ld. Advocate Shri. Hemant
Ghadigaonkar for defendant.
ORDER
1. Plaintiff has taken out this notice of motion to condone the
delay of 413 days and to permit defendant to file written statement on
record. Plaintiff filed reply affidavit and strongly opposed notice of
motion.
-- 1 of 4 --
Notice of Motion No. 1732 of 2023
in S.C. Suit No.1742/2015. 2 Order.
2. I have heard Ld. Advocate Shri. P. G. Parkar for the plaintiff
and Ld. Advocate Smt. Pallavi Chatterjee h/f Ld. Advocate Shri. Hemant
Ghadigaonkar.
3. It appears from the record that, defendant appeared in this
matter on 03-08-2015 through his advocate. However, writ of summons
was not served on defendant. On 22-01-2018 amendment in plaint was
allowed and the copy of amended plaint was not served on defendant.
On 18-01-2019, the court find that written statement is not filed and
the order of ex-parte evidence was passed on 22-04-2019. Defendant
contended in affidavit in support of notice of motion that, due to
financial crunch, he could not paid fees of the earlier advocate and
therefore, earlier advocate did not file written statement and the suit
proceeded ex-parte against him by order dtd. 18-01-2019. He also
contended in the affidavit that, delay is not intentional and deliberate
and no prejudice will cause to plaintiff, if delay is condoned and
permission is granted to file written statement.
4. As per the reply affidavit of plaintiff, the suit is filed for
possession labeling the defendant as the trespasser in the suit property.
It also appears that defendant has changed advocate in January-2020.
He had moved draft notice of motion for condoning delay and filing
written statement. Thereafter, due to covid-19 physical hearing of all
the court was suspended and because of that defendant could not file
registered notice of motion and then the present notice of motion is
moved as reconstructed notice of motion. The suit is not proceeded at
any substantial stage. Considering the nature of dispute and relief
-- 2 of 4 --
Notice of Motion No. 1732 of 2023
in S.C. Suit No.1742/2015. 3 Order.
sought in the plaint, in my considered view, opportunity needs to be
given to defendant to file written statement on record by condoning
delay and setting aside ex-parte order. At the most, costs can be
imposed on the defendant to compensate the plaintiff. In this view of
the matter, I pass following order:
- ORDER -
1. Notice of Motion No. 1732 of 2023 is allowed in terms of
prayer clause (a) to (c) subject to costs of Rs.1000/- be paid to
plaintiff within 15 days from today.
2. On deposit/payment of costs written statement be taken on
record.
3. Notice of Motion No. 1732 of 2023 is accordingly, disposed off.
(N.G. Shukla)
Judge
City Civil Court,
Date :16-10-2023 Gr. Bombay.
1. Dictated online on : 16-10-2023
2. Transcribed on : 16-10-2023
3. Checked and Signed on : 16-10-2023
4. Delivered to Certified :
Copy Section on
-- 3 of 4 --
Notice of Motion No. 1732 of 2023
in S.C. Suit No.1742/2015. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16-10-2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 16-10-2023
Judgment/Order signed by P.O. on 16-10-2023
Judgment/Order uploaded on 16-10-2023
-- 4 of 4 --