Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1843/19 in S.C.Suit No.2854/16. 1 Date : 30.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1843 OF 2019
IN
S.C.SUIT NO.2854 OF 2016
(CNR NO.MHCC010051892019)
Mr. Laxman Zina Waghela ..Plaintiff
Versus
Smt. Radhabai Ashok Waghela and Another .. Defendants
Appearances :
Adv. Mr. A.A.Taral for Plaintiff.
Adv. Mr. Satish Yadav for Defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 30.08.2019
ORDER
1. The defendants filed instant notice of motion for condonation of
810 days delay in filing written statement and for setting aside order
dated 31/10/2017 by which they are prevented from filing written
statement on record.
2. It is contended by the defendants that they have been served with
the writ of summons on 21/12/2016 and thereafter on 16/01/2017
they have appeared through their advocate and sought time to file the
written statement. Thereafter the matter was listed from time to time
for filing written statement. On 31/10/2017 when the matter was
listed for filing written statement as well as for reply to the notice of
motion filed by the plaintiff for injunction, their advocate did not
appear. Moreover, their advocate did not inform to file written
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N/m No. 1843/19 in S.C.Suit No.2854/16. 2 Date : 30.08.2019
statement on record.
3. It is submitted by the defendants that they are illiterate and they
could not understand the limitation for filing of written statement.
They did not take any steps to file written statement within period of
limitation. It is further submitted by the defendants that due to the
fault of their advocate, their written statement could not be placed on
record. They have good case on merit as well as on law. It is further
contended that if, they have been denied their right to file written
statement, a great injustice and irreparable loss would cause to their
statutory right to file written statement on record.
4. Per contra, plaintiff opposed the notice of motion by filing their
say on the ground that the defendants were granted sufficient
opportunity to file their written statement on record. The advocate of
the defendants had appeared all the time except on 31/10/2017.
Therefore, the Court rightly passed the order to proceed without written
statement and reply to the notice of motion filed by the plaintiff. It is
submitted by the plaintiff that the defendants did not assign sufficient
cause to condone the delay. Hence, plaintiff prayed for rejection of the
notice of motion.
5. Heard both the sides. Perused notice of motion, reply of the
plaintiff. It is the specific defence of the defendants that they are
illiterate women. They are not aware of the fact that the written
statement ought to have been filed within limitation. Their advocate
appeared time to time but on 31/10/2017 did not appear. Their
advocate did not guide them to file written statement within time.
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N/m No. 1843/19 in S.C.Suit No.2854/16. 3 Date : 30.08.2019
6. It is further case of the defendants that since January 2019 the
plaintiff started harassing the defendants and sent police at their
premises. Therefore, they have engaged another lawyer and thereafter
they came to know that their written statement is not filed on the
record. Therefore, they have engaged present lawyer to file written
statement. Thus, the defendants claim to be illiterate as well as due to
the fault of the earlier advocate they could not file the written
statement on record. The aforesaid defence can be justified from the
fact that the defendant no.1 has put her thumb impression on the
affidavit. Moreover, both defendants are ladies, therefore looking to the
aforesaid fact, in my view, due to the illiteracy the defendants could not
understood the limitation for filing the written statement. Therefore,
the delay needs to be condoned in the interest of justice.
7. In my view, if the delay is not condoned, the statutory right of the
defendants would be curtailed and the suit will not be decided on merit.
Therefore, considering the aforesaid fact that the advocate of
defendants did not guide the defendants and their illiteracy, the
defendants needs to be allowed to file their written statement and the
inconvenience caused to the plaintiff can be compensated by awarding
a reasonable cost of Rs.2,000/ to be payable by both the defendants.
Thus, I proceed to pass the following order :
ORDER
1. N/M No. 1843/2019 made absolute in terms of prayer clause (a),
(b), (c).
2. The delay of 810 days is hereby condoned to file written
statement on record and defendants are allowed to file their
written statement subject to payment of cost of Rs.2,000/ to be
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N/m No. 1843/19 in S.C.Suit No.2854/16. 4 Date : 30.08.2019
payable by both the defendants to the plaintiff and after payment
of the aforesaid cost the written statement shall be taken on
record.
3. N/M No. 1843/19 is disposed off accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 30.08.2019 Greater Mumbai
Dictated on : 30.08.2019
Typed on : 31.08.2019
Draft Submitted on : 31.08.2019
Checked on : 31.08.2019
Signed on : 31.08.2019
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N/m No. 1843/19 in S.C.Suit No.2854/16. 5 Date : 30.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNE
JUDGMENT/ORDER.”
31/08/2019 at 4.24 p.m. (Ms. M.A.Kulkarni)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
30/08/2019
JUDGMENT/ORDER signed by P.O.
on
31/08/2019
JUDGMENT/ORDER uploaded on 31/08/2019
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