Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.1807/2019 in S.C. Suit No.3575/2009
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1807 OF 2019
CNR NO.:MHCC010051292019
IN
S. C. SUIT NO. 3575 OF 2009
(HIGH COURT SUIT NO.1225 OF 2009)
Sumitra Kalerao w/o Ravindra Kalerao ...Plaintiff
V/s
Kalpana Ravindra Kalerao and others ...Defendants
Appearances:
Advocate Mr. Mishra for the plaintiff.
Advocate Mr. Santosh Jagtap for defendant No.1.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 30th JANUARY, 2020.
ORAL ORDER
Defendant No.1 has filed this Notice of Motion to set aside Order
dated 12.10.2017 and condone delay of 563 days in filing Written
Statement.
2. Defendant No.1 has stated in her affidavit that she is not sure
about the receipt of Writ of Summons. She has further stated that she
was informed to come to the Court by the person from the Office of
defendant No.2 and therefore, she came to the Court on 05.09.2015
and she was informed that the next date is given i.e. 13th October, 2015.
She has further stated that she met her Advocate and she was advised
to file application for filing the Written Statement. She has further
stated that she was informed that Suit is dismissed against defendant
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No.1 on 22.08.2013. She has further stated that she was not served
with copy of the Chamber Summons filed by plaintiff. She has further
stated that plaintiff was well aware about Suit is dismissed against
defendant No.1 and did not take any immediate action for restoration.
She has further stated that on 10.08.2016, she filed appearance and
filed reply to Notice of Motion for restoration. She has further stated
that in December, 2016 she was hospitalized and was suffering from
heart problems. She has further stated that in January, 2017 she has
undergone angiography. She has further stated that there was no
information from her Advocate, and she tried to contact her Advocate in
the month of December, 2018, but could not contact her. She has
further stated that in the first week of January, she made enquiry in the
Court and she was informed that the matter is kept for recording
evidence on 19.01.2019. She has further stated that on taking search of
the proceedings, it was revealed that Notice of Motion No. 2484 of 2016
was allowed on 16.08.2017 directing defendant No.1 to file Written
Statement within one month and no Written Statement order was
passed against defendant No.1 on 12.09.2017.
3. She has further stated that she was not aware of such Order. She
has further stated that she is illiterate and was not aware about such
proceedings filed against her. She has further stated that after the
Notice of Motion was taken after restoration of the suit, she engaged
Advocate who filed reply contesting the application and told her that he
will call her when her presence is required. She has further stated that
her Advocate neither attending the Court nor informing her about
order passed. She has further stated that she is having good defence on
merit and prayed to allow her to file Written Statement.
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4. Plaintiff has stated that she has filed suit for declaration her right,
title and interest in the suit premises and for recovery of amount due to
her on deceased husband's post death service benefits received by
defendant No.1 and against other defendants for reliefs. She has further
stated that suit summons were duly served upon defendant. Plaintiff has
stated that defendant No.1 was not appearing in the suit, but her
Advocate inspected the proceeding records and noted that vide order
dated 22.08.2013, suit was dismissed against defendant No.1. Suit was
proceeded exparte against defendant No.1. Plaintiff has further stated
that to restore suit plaintiff filed Notice of Motion No.2484/2016 and
copy of Notice of Motion was served upon defendant No.1 and
defendant No.1 filed her say and the Notice of Motion was allowed
directing defendant No.1 to file written statement. Plaintiff has further
stated that the evidence of PW1 is over and PW2 is under cross. She has
further stated that the copy of evidence affidavit of PW2 was served
upon the defendant No.1 on 19.01.2019. Plaintiff has further stated that
the Medical Certificate annexed to the affidavit pertains to dates prior
to passing of Order dated 12.10.2017. Plaintiff has further stated that
defendant No.1 was negligent in pursuing the suit and deliberately did
not participate in the trial and prayed to reject the Notice of Motion.
5. It is a matter of record that the Notice of Motion to restore the
suit against defendant filed and defendant No.1 appeared in that Notice
of Motion proceeding. It appears that defendant No.1 has stated that
she is illiterate. She has further stated that she had undergone
angiography in J.J. Hospital. She has further stated that she was
hospitalized in Saint George Hospital in first week of January, 2017 and
she informed her Advocate about her inability to attend the case and
the Advocate told her that he will take care of the case and inform
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about the proceedings. Defendant No.1 has further stated that
thereafter she tried to contact her Advocate in December, 2018 and
thereafter on enquiry she came to know that no Written Statement
order is passed. She has further stated that she filed appearance on
19.01.2019.
6. Considering the circumstances that defendant No.1 has
undergone angiography and suffered from heart problem, it is probable
that she told her Advocate that she is unable to attend the case. But at
the same time, according to her, she contacted her Advocate directly in
December, 2018. Considering the circumstances that according to
defendant No.1, she is having good case and suffering from heart
ailment, it appears she should be given an opportunity to file written
statement and fight case on merits. But fact that for almost one year she
did not contact her Advocate and tried to take information of the case
shows that there is delay on her part to proceed with the case. For such
delay plaintiff needs to be compensated. Hence, following order:
ORDER
1. Notice of Motion No.1807 of 2019 is allowed subject to cost of
Rs.7,000/ to be given by defendant No.1 to plaintiff.
2. Notice of Motion No.1807 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 30.01.2020 City Civil Court,
Gr. Bombay.
Dictated on : 30.01.2020
Transcribed on : 30.01.2020
Signed on : 30.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.02.2020 At 04:26 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
30.01.2020
Judgment/Order signed by P.O. on 30.01.2020
Judgment/Order uploaded on 03.02.2020
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