Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.1871/2019 ..1.. In S.C. Suit No. 713/2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1871 OF 2019
IN
S.C. SUIT NO. 713 OF 2018
CNR NO :- MHCC01-005251-2019
1. Mr. Vinod Ramendra Yadav,
Age : 45 Years, Occ. : Service,
Residing At : Flat No. 101, IVY Pride
Residency, Parsahwant College,
Kasarwadavli, Ghodbunder Road,
Thane (West) - 400 601.
2. Smt. Kalpana Dinesh Yadav,
Residing At : Village Mirzapur,
Dist. Fatehpur, Uttar Pradesh - 212 650.
3. Smt. Ratan Vinod Yadav,
Residing At : Village Mirzapur,
Dist. Fatehpur, Uttar Pradesh - 212 650. ...Plaintiff
Versus
Mrs. Leelavati Ramendra Yadav,
Residing At : Room No. 106, First Floor,
Shree Mangal CHSL, Ram Mandir,
Bhoiwada, G. D. Ambedkar Marg,
Parel, Mumbai - 400 012.
C/o. At present residing at Room No. 401,
Building No. 2, Sarvodaya Gardens,
Near Platform No. 1, Kalyan (W) - 421 301. ...Defendant
Appearance :-
Mr. Jannat K. Yadav, Advocate for the Plaintiff.
Mr. Kamlesh M. Singh, Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 2ND MARCH, 2021.
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Notice of Motion No.1871/2019 ..2.. In S.C. Suit No. 713/2018
ORAL ORDER
By this notice of motion, the defendant has prayed to set aside
ex-parte order dated 26.09.2018, to allow him to file written statement
and reply & to condone the delay of 221 days in taking out the notice
motion.
2. The defendant has come with the case that, the plaintiff is
aware that the defendant does not reside on the address on which the
summons was sent by R.P.A.D. She resides at Village Karanpur, Post
Chheolaha, Dist. Khaga Phatehpur, Uttar Pradesh and occasionally visits
Mumbai. She was not aware of filing of present suit and so did not
appear. An order is passed on 26.09.2018 proceeding the suit
ex-
parte.
She come to know about it on 15.02.2019 and so appointed a lawyer on
11.03.2019. She came from native place and appeared in the Court on
24.04.2019 and the present notice of motion is taken out. She has good
case on merits. The plaintiffs have come with a false suit. no prejudice
will be caused to the plaintiffs if the notice of motion is allowed. The
defendant is a layman and the reasons contributing delay were beyond
her control.
3. The plaintiffs opposed the notice of motion on the ground
that, the defendant was aware of filing of present suit. The writ of
summons is served on the proper address of the defendant on
16.03.2019. She intentionally did not claim the postal service. On
16.03.2018 itself the defendant has issued the notice to the Housing
Society through her advocate requesting for NOC to transfer the suit
premises. The address in said notice is the same address on which the
writ of summons was sent. The Housing Society has forwarded reply
dated 23.03.2018 to the defendant stating that, they are aware of
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Notice of Motion No.1871/2019 ..3.. In S.C. Suit No. 713/2018
present suit and so NOC cannot be granted. The defendant has
neglected to appear before the Court. On 09.03.2018 the defendant has
executed registered agreement in favour of one Manoj Kumar Yadav.
The address mentioned in said deed is the same address on which the
writ of summons was sent. The defendant has thus come with a false
story before the Court and is playing fraud upon the Court.
4. Perused. Heard.
5. Basic contention of the defendant is that, the writ of summons
is not served on her, as she was not residing on the address on which
the writ of summons was sent.
6. The affidavit of service revels that, the proceedings were
sought to be served on the defendant on the address of Room No. 106,
First Floor, Shri Mangal CSHL, Near Ram Mandir, Parel, Mumbai.
According to the defendant she does not reside on said address but
resides at Village Karanpur, Post Chheolaha, Dist. Khaga Phatehpur,
Uttar Pradesh.
7. The plaintiffs have produced on record a copy of legal notice
dated 16.03.2018 issued by Advocate Kokale on behalf of the
defendant. The address in the notice is the same on which the postal
envelope containing the writ of summons was addressed by the
plaintiff. The reply given by the advocate for the society dated
23.03.2018 is issued to the defendant on same address. It is mentioned
in the notice that, the property is under litigation. The copy of
Annexure-II produced with reply further reveals that, the defendant has
executed an agreement to sell on 09.03.2018 and her residential
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Notice of Motion No.1871/2019 ..4.. In S.C. Suit No. 713/2018
address mentioned therein is the same address on which the writ of
summons was sought to be served.
8. Considering the documents produced on record by the
plaintiff, it is clear that, the defendant is residing on the same address
on which the postal envelopes were sent and effort was made to serve
her. However, the defendant has come with an absolutely false and
unbelievable version before the Court. The proceedings clearly indicate
that, the defendant has no regard for truth and has tried to play a fraud
upon the Court contending that, she does not reside on the address on
which the summons was sent.
9. It is settled legal position that a person coming with a false
story before the Court is guilty of playing fraud upon the Court. Such
person can get any assistance from the Court. The time has come to
impress upon the litigants that, they should come before the Court with
clean hands and failure to do so, will result in proving them out of the
Court at any stage of the matter. Considering the defendant’s conduct
and the falsity of her story, I hold that, the notice of motion deserves
dismissal with exemplary costs. Hence, following order: -
ORDER
Notice of Motion No. 1871/2019 is dismissed
with costs of Rs.2,000/-.
(AJIT N. MARE)
Judge,
Date : 02.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 02.03.2021
Transcribed on : 02.03.2021
HHJ Signed on : 04.03.2021
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Notice of Motion No.1871/2019 ..5.. In S.C. Suit No. 713/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
04.03.2021 6.15 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 02.03.2021
Order signed by P. O. on 04.03.2021
Order uploaded on 04.03.2021
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