Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M. No. 1898/2019 in
S.C. Suit No.4791/2011. 1 Order.
MHCC010052822019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1898 OF 2019
IN
S.C. SUIT NO. 4791 OF 2011
Vilas Krishnarao Basutkar ... Plaintiffs
V/s.
Prakash Krishnarao Basutkar and Ors. ... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.29).
DATE : 22.01.2024
Appearance :
Ld. Advocate Shri. Dhananjay Pathak for plaintiff.
Ld. Advocate Shri. Narayanan for the defendant No.2.
ORDER
1. Defendant No.1 has taken out this Notice of Motion for
setting aside exparte order dated 26.02.2013, to condone the delay and
-- 1 of 7 --
N.M. No. 1898/2019 in
S.C. Suit No.4791/2011. 2 Order.
allow him to file written statement. Plaintiff filed reply affidavit and
opposed the Notice of Motion.
2. I have heard learned Advocate for defendant No.2 and
learned Advocate for plaintiff filed written argument.
3. The present suit is filed for partition of suit premises i.e.
Flat No.44/B, Parijat Cooperative Hsg. Ltd. at Bandra, Mumbai.
Plaintiff and defendant No.1 are real brothers and defendant No.2 is
widow of their another brother. Defendant no. 3 is Cooperative
Housing Society. The present suit was initially filed in the month of
November 2011 in Hon’ble High Court. As per record, writ of summons
was served on defendant No.2 and advocate Shri. Narayanan had filed
vakalatnama in the said suit on or about 07.04.2012. Thereafter, within
4 to 5 months, the suit was transferred to this court because of
enhancement of pecuniary jurisdiction of City Civil Court, Gr. Mumbai.
Then, the plaintiff filed affidavit of service on the basis of which ex
parte order came to be passed against defendant No.2 on 26.02.2013.
After about 6 to 7 years at the stage of final argument, defendant No.2
moved the present Notice of Motion.
4. Learned advocate Shri Narayanan for defendant No.2
submitted that, he had filed vakalatnama in the present suit on or prior
to 07.04.2012 when the suit was pending in the Hon'ble High Court.
Then the suit is transferred to this Court. There is no reference of
vakalatnama filed by him in the roznama since 2013, though it reflected
-- 2 of 7 --
N.M. No. 1898/2019 in
S.C. Suit No.4791/2011. 3 Order.
in case status when it was pending in Hon'ble High Court. It is
submitted that, various suits were transferred in City Civil Court and
initially dates were given for want of record and proceeding were not
received/transferred from Hon'ble High Court. After transfer of this suit
in City Civil Court, defendant No.2 and his advocate inadvertently lost
the track of the suit and could not appear and file written statement.
Defendant No.2 is single woman with no children and she mostly
resides at her native place with maternal relatives. When defendant
NO.1 is informed about pendancy of this Suit and transferred in this
Court, she taken steps to file present Notice of Motion. There is no
deliberate delay in not filing written statement. Plaintiff had filed 5
different cases in 5 different Courts which are contested by defendant
No.2. Hence, defendant will not be benefited by not filing written
statement. In these circumstance, exparte order be set aside and
Notice of Motion be made absolute.
5. In written argument, Learned advocate Shri. Dhananjay
Pathak for plaintiff submitted that, the reasons given by defendant No.2
in her affidavit in support, are unbelievable and not sufficient cause.
The length of delay is not mentioned in the Notice of Motion.
Defendant No.2 had not filed written statement within the period of 30
days or within extended period of 90 days from from the date of service
of summons. Defendant No.2 was well aware about filing of the suit
and transfer of it from Hon'ble High Court into City Civil Court.
Defendant No.2 is appearing and contesting others matters filed by
plaintiff in respect of other properties. Members of managing committee
of defendant No.3 had time to time made aware to defendant No.1 and
-- 3 of 7 --
N.M. No. 1898/2019 in
S.C. Suit No.4791/2011. 4 Order.
defendant No.2 about pendency of present suit. No satisfactory reasons
are given for setting aside exparte order and condoning the delay.
Hence, learned advocate for plaintiff prayed to dismiss the Notice of
Motion.
6. I have considered submissions and perused the record. It is
a matter of record that, initially suit was filed in the Hon'ble High Court
in November 2011. Writ of Summons were issued to defendants No.1
and 2 on January/ February 2012. After service of writ of summons,
advocate Shri. Narayanan for defendant No.2 filed vakalatnama which
is reflected in the case status, copy of which is filed alongwith Notice of
Motion. Thus, it is not a factual position that defendant No.2 failed to
appear on the first date of appearance after service of writ of summons.
7. It is matter of record that, in or about October 2012, suit
was transferred from Hon'ble High Court into this Court. It is submitted
that, so many matters were transferred at the relevant time and the
vakalatnama filed by defendant No.2 is not reflected and not made part
of the record and proceeding when the matter is taken on board in the
City Civil Court since commencement of proceeding of this Court on
26.02.2013. It appears from record that, advocate for plaintiff filed
service affidavit showing the service of summons in January/February
2012 and on that basis, exparte order is passed. However, factual
position is that advocate Narayanan for defendant No.2 had filed
vakalatnama when the matter was pending in the Hon'ble High Court.
There is no fresh service of notice after transfer of suit in City Civil
Court. In such circumstances, exparte order could not have been passed
-- 4 of 7 --
N.M. No. 1898/2019 in
S.C. Suit No.4791/2011. 5 Order.
against defendant No.2 when Advocate Narayanan had already filed
vakalatnama in the suit in Hon'ble High court.
8. It is not in dispute that, plaintiff has filed various matters in
various Courts i.e. 5 proceedings as submitted by defendant No.2. It is
also not in dispute that, defendants No.1 and 2 are contesting the said
proceeding in various Courts. Hence, in my view, defendant No.2 could
not have been benefited by not filing written statement and not
contesting the present suit. Thus, I find substance in the submission of
learned Advocate for defendant No.2 that, after transfer of the suit in
this Court, inadvertently defendant No.2 and her advocate lost the track
of the suit, overlooked the same and they didn't appear in the suit.
9. Though 3o days period is prescribed under O.8 R. 1 of CPC
for filing written statement which can be extended upto 90 days in
total, but said provision is directory and not mandatory and court can
permit defendant to file written statement beyond said period as laid
down in Salem Advocate Bar Association, Tamil Nadu Vs. Union of
India, AIR 2005 SC 3353.
10. It is true that, notice of motion is taken at stage of final
argument, but considering all aforesaid circumstances and having
regard of the suit for partition of immovable property amongst the legal
heirs of father of plaintiff and defendants No.1 and 2, I am of the view
that, no serious prejudice will cause to plaintiff if exparte order is set
aside and defendant No.2 is allowed to contest the suit by filing the
-- 5 of 7 --
N.M. No. 1898/2019 in
S.C. Suit No.4791/2011. 6 Order.
written statement on record. It will be helpful to decide the suit on
merits. For delaying the matter approximately for 9 years, costs can be
imposed to compensate the plaintiff. In this view of the matter, I pass
following order :
ORDER
1. Notice of Motion No.1898 of 2019 is allowed in terms of
prayer clauses (a) to (c).
2. Exparte order dated 26.02.2013 is set aside and delay is
condoned subject to costs of Rs.3,000/ payable to plaintiff within
3 weeks from today.
3. After deposit of costs in Court or payment of it to plaintiff,
written statement is allowed to be taken on record.
4. Notice of Motion No.1898 of 2019 is disposed off
accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date : 22.01.2024 Gr. Bombay.
1. Dictated on : 22.01.2024
2. Transcribed on : 22.01.2024
3. Checked and Signed on : 22.01.2024
-- 6 of 7 --
N.M. No. 1898/2019 in
S.C. Suit No.4791/2011. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22.01.2024 4.18 p.m. Mrs. Shravanti Karre
Name of the Judge HHJ Shri N.G. Shukla
(Court Room No.29).
Date of Pronouncement of Judgment/Order 22.01.2024
Judgment/Order signed by P.O. on 22.01.2024
Judgment/Order uploaded on 22.01.2024
-- 7 of 7 --