Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.1870/2019
MHCC010052502019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 1870 OF 2019
IN
SUIT NO. 986 OF 2018
1. M/s. Royale Builders & Ors. …Applicants.
(Orig.defendants)
In the matter between
Smt. Ushaben V. Pandit & Ors. … Plaintiffs
Vs.
M/s. Royale Builders & Ors. … Defendants
Appearance
Learned Advocate Mr. Devansh Bheda i/b. M/s. Purnanand Co. for the
applicants/defendants.
Learned Advocate Mr. Udayan S. Jain for the plaintiffs.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 18th March, 2023
O R D E R
This notice of motion is taken out by the
applicants/defendants for setting aside the order dated 03.11.2018 by
which the suit is ordered to proceed exparte against the defendants.
2. The motion is opposed by the plaintiffs by affidavit in
reply.
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3. The defendants have filed rejoinder to the reply of the
plaintiffs.
4. Heard learned advocates for the plaintiffs and the
defendants. Read the affidavit in support of motion, affidavit in reply
and rejoinder.
5. It is the contention of the defendants that writ of summons
were served on 10.04.2018. The defendants appeared and attended the
hearing on 27.04.2018 and 16.07.2018, however, on both these dates
board was discharged. On 03.11.2018 defendant No.3 could not attend
the hearing as he was not well. When the defendants' advocate
represented on behalf of the defendants, he found that on 03.11.2018
order to proceed suit exparte was passed.
6. The plaintiffs opposed the motion contending that reason is
not sufficient. There is negligence on the part of the defendants.
7. The defendants have relied on the judgment in case of
State (NCT of Delhi) V/s. Ahmed Jaan (2008) 14 Supreme Court
Cases 582 and Collector Land Acquisition, Anantnag & Anr., V/s.
Katiji and Others (1987) 2 Supreme Court Cases 107. In the State
(NCT of Delhi) case supra it is held that if the explanation offered was
plausible it deserved to be accepted. The expression 'sufficient cause' is
adequately elastic to enable the court to apply the law in meaningful
manner which subserves the ends of justice that being the life purpose
for the existence of the institution of courts. In Collector Land
Acquisition, Anantnag's case supra it is held that power to condone the
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delay under Section 5 of Limitation Act, 1963 is in order to enable the
Courts to do substantial justice to parties by disposing of matters on
'merits'. Taking into view the ratio laid down in the aforesaid
judgments, I proceed to decide the motion.
8. As contended by the defendants, suit summons have been
served on the defendants on 10.04.2018. Order to proceed the suit
exparte is passed on 03.11.2018. They have filed this motion on
07.08.2019. It is their contention that on 27.04.2018 and 16.07.2018
they appeared but board was discharged and therefore, they could not
file their appearance. This reason cannot be accepted. The defendants
were expected to file their appearance by filing Vakalatnama, it appears
that they failed to do so. It is the contention of the defendants that
defendant No.3 who was looking after the case was not feeling well
therefore, on 03.11.2018 he failed to appear. Admittedly, no such
medical certificate is filed on record. However, I am of the view that
there is no inordinate delay to approach the Court for setting aside the
exparte order. The suit is for mandatory directions for compliance of
application under the MOFA Act, valuable rights of the parties are
involved. Merely for technical default of the defendants to appear, the
defendants' right to file their written statement cannot be denied. In
order to enable the Court to do substantial justice, the defendants can
be allowed to file their appearance and the written statement.
Considering the ratios laid down in the State (NCT of Delhi) and
Collector Land Acquisition, Anantnag's case supra, I am of the view
that the order dated 03.11.2018 directing the suit to proceed exparte
against the defendants shall be set aside. However, considering the
default on the part of the defendants who have also not taken care to
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file the written statement alongwith motion, I am of the view that they
are liable to pay costs. In the result, I pass following order:
O R D E R
1. Notice of Motion No.1870/2019 is allowed subject to costs of
Rs.5000/ (rupees five thousand only).
2. Order dated 03.11.2018 directing the suit to proceed exparte
against the defendants is set aside.
3. The defendants are allowed to file written statement.
4. Costs shall be paid to the plaintiffs on or before next date.
5. Notice of Motion No.1870/2019 is disposed of accordingly.
Date : 18.03.2023 (Rajesh A. Sasne)
Dictated on : 18/03/2023. Judge, C.R.No.62,
transcribed on : 18/03/2023. City Civil Court,
Signed on : 21/03/2023. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.03.2023 at 01.17 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 18/03/2023
Order signed by P.O. on 21/03/2023
Order uploaded on 21/03/2023
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