Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.1804 OF 2019
IN
S.C.SUIT NO.942 OF 2018
Smt.Rashida Hasan Shaikh
Aged 62 years, Occ. Housewife
Indian Inhabitant residing at
Room No.43, B.D.D. Chawl No.7,
2nd floor, N.M.Joshi Marg,
Mumbai400 013. ....Plaintiff
V/s
1. Shri.Sudesh Tambe
aged adult year, Occupation Business
2. Smt.Kalpana Tambe
Aged adult years, Occupation Business
Both are residing at Room no.45,
B.D.D. Chawl No.7, 2nd floor,
N.M.Joshi Marg,Mumbai400 013. ....Defendants
APPEARANCE:
Plaintiff and advocate absent.
Advocate Prashant D. Kalbande for defendant no.2.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A.BHOSALE
(COURT ROOM NO. 32)
DATE : 31st August, 2019
ORDER
Perused Notice of Motion and affidavit.
2. It is submitted by the defendant nos.1 and 2 that the plaintiff has
filed suit against them and they were served on 24/10/2018. However,
their father of defendant no.1 and husband of defendant no.2 was
suffering from high blood pressure and diabetes and advised rest
therefore, they had take care of father of defendant no.1 Deepak
-- 1 of 4 --
2
Sudhakar Tambe and therefore, they are unable to go through the
papers and proceedings and to appoint the lawyer to draft and file the
written statement and to represent them before the Court. It is further
submitted by the defendant nos.1 and 2 that the father of defendant
no.2 and husband of defendant no.1 was died on 5/2/2019 and they
are in deep shock and they could not file their written statement within
a stipulated time and delay has been caused of 151 days. It is further
submitted that they have very good case and the delay of 151 days is
not deliberate and intentional and the only reason for the delay is due
to inadvertence and oversight and due to factors beyond their control
and therefore, they could not file written statement within stipulated
time. Lastly, they prayed that the delay of 151 days may kindly be
condoned and they are permitted to file their written statement on
record.
3. Say of other side is called. Plaintiff opposed the application by
filing written reply. It is contended by the plaintiff that the defendant
has not properly explained the delay. It is pointed out by plaintiff that
the defendant remark appear before before the court in persons but
they intentionally avoided to file written statement on record. Lastly it
is submitted that the application for condonation of 151 delay may be
rejected.
4. I have perused entire record as well as roznama from
24/10/2018 . Entries in the roznama shows that the defendant nos.1
and 2 held before the court in person on 24/10/2018 and thereafter
matter is posted for filing written statement on 6/3/2019. On
6/3/2019 defendant no.1 is present before the court in person.
However, failed to file written statement and therefore, matter is
-- 2 of 4 --
3
adjourned till 10/4/2019. On 10/4/2019 also defendant no.1 present
in person before the court and advocate Prashant Kalbande tendered
vakalatnama for defendant no.2 and thereafter matter is adjourned on
25/6/2019 for written statement on the side of defendant nos.1 and 2
but they are failed to file their written statement on record. Finally,
stipulated time is over and thereafter, they have filed Notice of Motion
on 24/4/2019. The record speaks the presence of defendants on each
and every fixed date before the Court. Thus, their contention in the
Notice of Motion that they are taking care of father of defendant no.2
and husband of defendant no.1 does not survive. Secondly, for the
ground of illness of husband of defendant no.1 and father of defendant
no.2 no medical certificates are supporting to the contention of
defendant nos.1 and 2. Therefore, the ground raised by them in the
Notice of Motion does not survive. As per O.VIII R.1 of CPC it was
defendant nos.1 and 2 to file their written statement within 30 days. As
per the proviso of O.VIII R.1 of CPC were defendant fails to file written
statement within 30 days he shall be allowed to file the same. On such
other day for reasons to be recorded in writing but which shall not be
later than 90 days from the date of service of summons. Admittedly,
the defendant nos.1 and 2 failed to obey the mandate of O.VIII R.1 of
CPC and prayed that delay of 151 days be condoned. However, as I
stated above they have given reasons for delay in filing written
statement are appears to be not satisfactory and thus I found that the
application does not have any merit to condone delay of 151 days.
Under such circumstances I come to the conclusion that defendant
failed to satisfy the Court for explaining the reason of delay. Hence, I
proceed to pass following order.
-- 3 of 4 --
4
ORDER
Notice of Motion No.1804 of 2019 is rejected.
Date: 31/08/2019 (Milind A.Bhosale)
Adhoc Judge,
City Civil & Sessions Court,
Gr.Bombay.
Dictated on : 31/08/2019
Typed on : 31/08/2019
HHJ signed on : 31/08/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
31.08.2019 at 12.20 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
31.08.2019
JUDGMENT/ORDER signed by P.O. on 31.08.2019
JUDGMENT/ORDER uploaded on 31.08.2019
-- 4 of 4 --