Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1801-2019 in SU 1719-2018
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1801 OF 2019
(CNR No.MHCC01-005114-2019)
IN
SUIT NO.1719 OF 2018.
(CNR No.MHCC01-004076-2018)
Sumant Shankar Jedhe }...PLAINTIFF.
Versus
Santosh Hanumant Jedhe & Ors. }...DEFENDANTS.
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Shri.Deshmukh, learned advocate for the plaintiff.
Shri.Jaiswal, learned advocate for defendant Nos.1 & 2.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 23/03/2021)
1. By filing this Notice of Motion, defendant Nos.1 & 2 have
prayed to condone the delay caused in filing Written Statement, to
reject the Affidavit of Service dtd.13/02/2019 filed by the advocate for
the plaintiff and to frame preliminary issue of jurisdiction.
2. Read the affidavit filed in support of Notice of Motion and
affidavit in reply filed by the plaintiff. Heard learned Shri.Jaiswal
advocate for defendant Nos.1 & 2 and learned Shri.Deshmukh advocate
for plaintiff. Perused the entire record.
3. At the outset, it may be stated here that the prayer made in
the Notice of Motion to frame preliminary issue of jurisdiction cannot
be accepted as section 9(A) of the Civil Procedure Code is no more in
existence hence, the prayer made in the Notice of Motion to that effect
is rejected.
4. Learned advocate for the plaintiff submitted that plaintiff
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has filed Affidavit of Service of Writ of Summons which shows that Writ
of Summons is served on defendant Nos.1 & 2 on 06/09/2018. He
submitted that there is inordinate delay in filing Written Statement
hence, Notice of Motion is liable to be rejected.
5. As against this, learned advocate for defendant Nos.1 & 2,
by taking me through the Affidavit of Service filed on 13/02/2019,
submitted that there is no endorsement and signature of anybody from
the side of defendant Nos.1 & 2 to show that Writ of Summons is served
on those defendants on 06/09/2018 as is mentioned in the said
Affidavit of Service. He submitted that he has waived service of Writ of
Summons on behalf of defendant Nos.1 & 2 on 19/01/2019.
6. Having gone through the
Roznama, I found substance in
the said argument. This Notice of Motion is taken out on 05/04/2019
i.e. beyond 30 days of waiving the service of writ of summons however,
it does not appear that there is intentional delay on the part of
defendant Nos.1 & 2 in not filing their Written Statement within a
period of 30 days stipulated by Order 8 Rule 1 of Civil Procedure Code.
Notice of Motion is taken out within 90 days from the date of waiving
the service of Writ of Summons. Having regard to said aspect and as it
does not appear that there is no intentional delay on the part of
defendant Nos.1 & 2, this court is of the opinion that it would be in the
interest of justice to allow the Notice of Motion in terms of its prayer
clause-a for giving fair opportunity to defendant Nos.1 & 2 to contest
the suit on merits.
7. So far as the prayer made to reject the affidavit of service
filed by advocate for plaintiff is concerned, it is not necessary to pass a
separate order in that regard as this court has already considered &
accepted the contention of defendant Nos.1 & 2 that they have waived
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3 NM 1801-2019 in SU 1719-2018
service of writ of summons on 19/01/2019. Thus, an order.
O R D E R
Notice of Motion No.1801 of 2019 is partly allowed in
terms of its prayer clause(a).
Date : 23/03/2021. (P.P.RAJVAIDYA)
Dictated on : 23/03/2021. Judge, C.R.No.9,
Checked on : 26/03/2021. City Civil Court,
Signed on : 26/03/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
30.03.2021 at 12.10 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 23/03/2021.
Order signed by P.O. on 26/03/2021.
Order uploaded on 30/03/2021.
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