Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1890/19(Suit 2161/17)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1890/2019
(CNR No.MHCC010052642019)
IN
S.C. SUIT NO. 2161/2017
D. Selvan ... Plaintiff.
V/s.
Mr. S. Murugan .. Defendant.
Appearances :
Adv. Mr. Tushar Kochale for plaintiff.
None present for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
(CR No.: 03).
Date : 8.12.2021.
ORDER
1. Defendant tendered instant notice of motion for
condonation of 131 days delay in filing W.S. and prayed to set aside "no
WS" order dated 13.2.2019.
2. It is contended by the defendant that, in first week of
March, 2018, he was served with an envelope containing only writ of
summons, therefore on 12.3.2018, his advocate issued a letter to the
advocate of the plaintiff and asked for copy of the plaint alongwith
Annexures. However, again, plaintiff's advocate served only plaint
without annexures to his advocate. Therefore, on 6.7.2018, defendant's
advocate wrote a letter to the plaintiff's advocate seeking supply of
annexures relied upon by the plaintiff.
3. It is contended that, on 17.9.2018, at the time of hearing of
the present suit, advocate of the plaintiff served copy of annexures to
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the defendant.
4. It is further contended that, in second week of January
2019, due to personal difficulty of his advocate on record, he could not
attend the matter. Therefore, after obtaining NOC from him, he
engaged present advocate by signing Vakalatnama on 12.2.2019, who
filed Vakalatnama on 13.2.2019. It is contended that, on 13.2.2019, his
advocate was held up in traffic, therefore could not attend the matter in
morning session. His advocate attended at 12.20 pm and filed
Vakalatnama. However, 'no say' order was passed by this court. Thus,
it is contended that, the delay has been caused in filing the W.S. The
delay is not intentional or deliberate, caused either by the defendant or
by his advocate. The defendant being a layman having no sufficient
knowledge about court proceedings, the delay has been caused.
Therefore, the defendant prayed for allowing the Motion.
5. The Motion is opposed by the plaintiff by filing say on the
ground that, the defendant failed to explain the delay in filing the
notice of motion. Further, there is no explanation for the delay caused
after 17.9.2018 till January,2019. It is contended by the plaintiff that,
the defendant failed to calculate correct number of days of delay. In
fact, there is delay of 365 days from the service of writ of summons and
189 days from the date of supply of the plaint and Annexures (Exhs.)
i.e. from 17.9.2018.
6. It is further contended that, the defendant raised false
ground of change of advocate. In fact, the defendant, in order to
prolong the commencement of the trial, is in habit of changing
advocates. Therefore, the plaintiff prayed for dismissal of the Motion.
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7. Heard Ld Advocate for the defendant. The plaintiff has
already tendered written arguments reiterating contents of his reply. It
is the specific case of the defendant that, he was not served with plaint
and Annexures alongwith writ of summons. It is contended that, he was
served with the plaint on 4.7.2018 and with Annexures on 17.9.2018.
The aforesaid contention is not seriously disputed by the plaintiff,
rather letters annexed by the defendant show that, he was not served
with plaint and Annexures. Therefore, service is not completed against
the defendant. On 17.9.2018, he had received the plaint and
Annexures, therefore limitation would start from the aforesaid date.
8. The defendant further contended that, in the month of
January 2019, he has changed his advocate and in the month of
February 2019, his advocate tendered Vakalatnama. No doubt, the
defendant did not explain the delay from the period 17.9.2018 till
January 2019. But, looking to the nature of the suit and of the fact that
the matter is at the stage of filing evidence by the plaintiff, I am of the
view that the defendant can be allowed to file W.S., subject to payment
of costs. I am of the view that, in the event, the defendant is not
permitted to file W.S., certainly a great prejudice will be caused to his
right. Therefore, by awarding reasonable cost, the defendant can be
permitted to tender evidence on affidavit. Thus, I proceed to pass
following order :
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ORDER
1. Notice of Motion No.1890 of 2019 is made absolute in terms of
prayer clause (a) and (b).
2. The defendant is allowed to file W.S. within a period of 15 days
from the date of the order on the condition of payment of costs of
Rs.5,000/ to the plaintiff.
3. Upon payment of the aforesaid cost, the defendant will be
allowed to file W.S. on record.
4. Costs in cause.
5. In view of above, the Notice of Motion is disposed off accordingly.
(A.H.Laddhad)
Judge,
Dated : 8.12.2021 City Civil and Sessions Court,
Dictated on : 8.12.2021 Greater Bombay (CR 03)
Typed on : 8.12.2021
Draft given to HHJ on : 8.12.2021
Signed on : 9.12.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
9.12.2021 at 3.00 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 8.12.2021
JUDGMENT/ORDER signed by P.O. on 9.12.2021
JUDGMENT/ORDER uploaded on 9.12.2021
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