Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.1705/2020 ..1.. In S.C.Suit No.628/2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1705 OF 2020
IN
S.C. SUIT NO. 628 OF 2018
CNR NO : MHCC01-005125-2020
Pralhad Waman Yadav,
R/at : Lailbhai Compound,
Veer Jija Mata Bhosale Marg,
Zo.CNC70, Annabhau Sathe Nagar,
Mankhurd (West), Mumbai - 400 043. ...Plaintiff
Versus
1. Kamal Popat Yadav,
Age : Adult, Occ.: Housewife,
2. Deepak Popat Yadav,
Age : Adult, Occ.: Service,
3. Pravin Popat Yadav,
Age : Adult, Occ.: Service,
Defendants No. 1 to 3 Residing At :
Room No. 74, Chawl No. 8,
Ramabai Ambedkar Nagar,
Ghatkopar (E), Mumbai - 400 075.
4. Rani Popat Yadav,
Age : Adult, Occ.: Housewife
All Residing At : Ramabai Ambedkar
Nagar, Ghatkopar (E), Mumbai - 400 075. ...Defendants
Appearance :-
Mr. Santosh Kori, Advocate for Plaintiff.
Mr. Avinash B. Patil, Advocate for defendants.
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Notice of Motion No.1705/2020 ..2.. In S.C.Suit No.628/2018
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 11TH FEBRUARY, 2021.
ORAL ORDER
By this notice of motion the defendants have prayed for set-
ting aside of order dated 16.07.2018 by which the suit has proceeded
ex parte against them.
2. It is their case that, they received suit summons on
19.06.2018. On the date of appearance i.e. on 16.07.2018 they were
present in the Court Room, but they could not mark their appearance,
as they are unaware of the Court proceedings. They were confused as
to when the matter would be called out. They had attended the Court
for the first time in their life. At 5.30 pm on enquiry the staff of the
Court informed them that the suit was not on board since the notice of
motion was listed on the board. On 21.07.2018 all defendants ap-
proached the advocate, who informed them about
ex parte order. Due
to dispute amongst the defendants, chamber summons No. 1086/2019
was filed only on behalf of defendants No. 1, 3 and 4. Defendant No. 2
came to know that, rest of the defendants have filed chamber summons
and so he also approached the advocate and another chamber summons
No. 1519/2019 was filed. This Court opined that chamber summons
were not maintainable and notice of motion will have to be taken out.
Consequently, present notice of motion is taken out.
3. The plaintiff has not filed reply. However, advocate for
plaintiff submitted that, he will advance oral submissions.
4. Perused. Heard.
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Notice of Motion No.1705/2020 ..3.. In S.C.Suit No.628/2018
5. Advocate for defendants submitted that, the
roznama of the
case itself indicates that, at the earliest opportunity chamber summons
is filed on behalf of defendants No. 1, 3 and 4 and later also on behalf
of defendant No. 2. Earlier chamber summons was not filed for defen-
dant No. 2 also, as there was dispute amongst the defendants. Defen-
dants be given an opportunity to contest the suit else they will suffer ir-
reparable loss.
6. Advocate for plaintiff submitted that, none of the defen-
dants appeared on the date of appearance. Later only defendants No. 1,
3 and 4 took steps, but defendant No. 2 never took steps at the earliest
opportunity. Defendant No. 2 has killed the time unnecessarily. The
story in earlier chamber summons and in present notice of motion is dif-
ferent and thus defendants are not consistent on the ground for setting
aside an
ex parte order. He submitted that, notice of motion is meritless
and should be rejected.
7. The proceedings do indicate that, on the date of appear-
ance it is recorded in
rozanama that, none of the defendants appeared
and on very day the suit is directed to proceed
ex parte against all the
defendants. It is matter of record that, later only defendants No. 1, 3
and 4 have taken out chamber summons instead of notice of motion.
Defendant No. 2 has taken out chamber summons on subsequent date.
8. Fact remains on record that, soon after passing the order,
on the earliest possible opportunity, defendants No. 1, 3 and 4 have
taken out chamber summons. Though they should have taken out the
notice of motion, what is apparent from the proceedings is that, they
had taken prompt steps. Non maintainability of the chamber summons
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Notice of Motion No.1705/2020 ..4.. In S.C.Suit No.628/2018
is not a ground to doubt their
bonafides. A little delay by defendant No.
2 is not going to matter much.
9. In adversarial system like ours, it is always better to decide
the matters on merits by granting opportunities to the parties to litiga-
tion to put forward their respective case before the Court. Considering
the grounds in the notice of motion, I think it fit to allow the notice of
motion & to set aside the
ex parte order dated 16.07.2018 considering
the prompt steps taken by the defendants. Hence, following order: -
ORDER
1. Notice of Motion No. 1705/2020 is made absolute.
2.
Ex parte order dated 16.07.2018 is set aside.
3. Defendants shall file written statement on or before next
date.
4. No order as to costs.
(AJIT N. MARE)
Judge,
Date : 11.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 11.02.2021
Transcribed on : 12.02.2021
HHJ Signed on : 15.02.2021
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Notice of Motion No.1705/2020 ..5.. In S.C.Suit No.628/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
15.02.2021 3.31 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No.3)
Date of pronouncement of Order 11.02.2021
Order signed by P. O. on 15.02.2021
Order uploaded on 15.02.2021
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