Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no 1611-18 L.C.SUIT no. 1762-2017
CNR MHCC010050622018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO.1611 OF 2018
IN
SUIT NO.1762 OF 2017
Mrs. Jyoti Sunil Wassoodew ]..Plaintiff
Versus
1. Jayanand Khira & Company ]
& 5 Ors. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 18th April, 2018.
Mr. Kulkarni, advocate for plaintiff.
Ms. Bhandari, advocate for defendant nos.3 and 4.
Ms. Chandramore for defendant Corporation.
ORDER
1. The defendant nos.3 and 4 (for short, “defendants”) have
taken out this notice of motion for setting aside the “no written
statement” order, with a leave to allow to file written statement by
condoning delay.
2. According to the defendants RAD Suit no.1132 of 2017 has
been filed by the plaintiff against the defendants on identical facts in
Small Causes Court. The defendants filed written statement in the said
suit and inadvertently forgot to file written statement in this suit. There
is delay of 66 days in filing the written statement.
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3. The plaintiff opposed motion by contending that the
summons was served on defendant no.3 on 14.9.2017 and defendant
no.4 on 12.9.2017 and therefore, there is delay of 158 days and 160
days respectively in filing the written statement after the initial period
of 30 days is over.
4. Heard respective advocates at length. They have made
submissions in consonance with the contentions raised by respective
parties.
5. So far as the provisions of Order VIII Rule 1 of Civil
Procedure Code (for short, CPC) are concerned, the written statement
should be filed within 30 days from the date of service of summons. It
is further provided that where the defendant fails, he may be allowed to
file written statement on such other date as may be specified and for
the reasons to be recorded in writing but not later than 90 days from
the date of service of summons.
6. It has been held in the case of R.N. Jadi vs.
Subhashchandra by the Hon'ble Supreme Court (Coram: Dr.Arjit
Pasayat, P.K. Balsubramaniam, D.K. Jain. JJ.) that “the provision
contained in Order VIII Rule 1 is procedural and not a part of the
substantive law. Its object is to expedite the hearing and not to scuttle the
same. The said provisions do not deal with the power of the Court and
also do not specifically take away the power of Court to take written
statement on record though filed beyond the time as provided for.”
7. Thus, the provisions of Order VIII Rule 1 of C.P.C. are
directory in nature. The provisions as to filing the written statement are
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also governed by Rule 10 of Order VIII of CPC wherein the Court may
pronounce judgment or make such an order in relation to suit as it
thinks fit. (emphasis supplied). Therefore, in order to decide the suit on
merits, even the Court can allow filing of written statement at any stage
before passing the judgment.
8. It has also been held in the case of Vimal Kumar vs. Vinod
Kumar reported in 1999 (1) Mh.L.J. 180 that Rule 10 of Order VIII
gives discretion to the Court and the Court can permit the defendant to
file written statement at any stage prior to pronouncement of the
judgment.
9. Here, the plaintiff is seeking relief of declaration about
validity of development agreement etc. and consequential relief of
injunction against the defendants. Therefore, it is just, fit, proper and
expedient to allow the defendants to file written statement. The
prejudice which is caused to the plaintiff is required to be compensated
in terms of costs. Thus, the following order is passed:
ORDER
1. Notice of Motion no.1611 of 2018 is made absolute in terms of
prayer clause (a) and by allowing the defendants to file their
written statements subject to payment of costs of Rs.2000/.
2. The costs Rs.2000/ be paid to the plaintiff or deposited in the
court within a period of 2 weeks from today.
Sd/
(M.S. Deshpande)
Ad hoc Judge,
City Civil Court, Mumbai.
Directly typed on : 18/04/2018.
Signed by HHJ on : 20/04/2018.
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4 NM no 1611-18 L.C.SUIT no. 1762-2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.04.2018 At 11.16 a.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
18.04.2018
JUDGMENT/ORDER signed by P.O.
on
19.04.2018
JUDGMENT/ORDER uploaded on 20.04.2018
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