Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1934/2019 L.C. Suit No.2670/2017
CNR No. MHCC010053662019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1934 OF 2019
IN
L.C. SUIT NO. 2670 OF 2017
Vinod Vithoba Gambhir )
Age 38 years, Occ : Business carrying )
on his business in the name and style )
of Vinod Hair Cutting Saloon, situated )
at Sitaram Mill Compound, Ambedkar )
Nagar, J.R. Boricha Marg, Dhobi Ghat, )
Mumbai )... Plaintiff
Vs.
The Municipal Corporation of Gr. Mumbai)
a body corporate having its office at )
Mahapalika Marg, Fort, Mumbai 400 001 )
Through; Assistant Commissioner,G/South )
Ward, Elphinstone Road, Lower Parel, )
Mumbai 400 012. )...Defendant
APPEARANCE:
Ld. Adv. Mr. V.B. Jagadale for the plaintiff.
Ld. Adv. Mr. Kumawat for the defendant/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C. P. JAIN (C.R.NO.06)
DATED : 16th JANUARY, 2020.
O R D E R
This Notice of Motion No.1934/2019 is taken out by
defendant praying to set aside the order dated 14.08.2018 & permit it
to file its written statement.
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2. In the affidavit filed in support of Notice of Motion, it is
averred by defendant that defendant being statutory and public body
and a vast organization, due to heavy workload this defendant failed to
file the written statement in time. Defendant was required to take
instructions from different departments and it was not possible to get
the draft of written statement approved within stipulated time.
Defendant has very good case and unless this defendant files the
written statement, the correct facts and legal position will not be
pointed out to the court. Defendant therefore prayed to allow its notice
of motion.
3. Plaintiff has resisted the aforesaid notice of motion by
filing his reply. According to plaintiff, notice of motion is hopelessly
time barred as per the law of limitation. Present notice of motion as
well as affidavit in support is absolutely vague, the defendant failed to
make out the primafacie case for condonation of delay as prayed for in
the notice of motion. Defendant apparently failed to explain the
reasons on merits, for the delay caused in filing the present notice of
motion. Defendants have not given any proper and specific reasons, for
the delay caused in filing the present notice of motion. Defendant
cannot sleep over their legal rights, due to their own negligence and
afterwards take disadvantage of his own negligence and wrong, by
filing vague application or notice of motion. Writ of summons of this
case as per court record, is duly served upon the defendant on
06.12.2017. Defendant was under mandatory obligation to explain day
to day delay caused in filing the notice of motion. For aforesaid
reasons, he prayed to dismiss the notice of motion.
4. Heard both the learned advocates and perused the
proceeding. Both learned advocates have argued in lines of the
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pleadings in the notice of motion and reply filed on record.
5. I have given anxious consideration to arguments of both
the learned advocates. At the outset, it is not in dispute that in order to
condone delay, defendants have to make out sufficient cause. What is
sufficient cause has been explained in the citation of Balwant Singh
(Dead) V/s. Jagdish Singh and others reported in (2010) 8 SCC 685.
Liberal construction of the expression “sufficient cause” is intended to
advance substantial justice which itself presupposes no negligence or
inaction on the part of the applicant, to whom want of bonafides is
imputable. The expression “sufficient cause” implies the presence of
legal and adequate reasons. The word “sufficient” means adequate
enough, as much as may be necessary to answer the purpose intended.
It embraces no more than that which provides a plentitude which,
when done, suffices to accomplish the purpose intended in the light of
existing circumstances and when viewed from the reasonable standard
of practical and cautious men. The sufficient cause should be such as it
would persuade the court, in exercise of its judicial discretion, to treat
the delay as an excusable one. The party should show that besides
acting bonafide, it had taken all possible steps within its power and
control and had approached the court without any unnecessary delay.
The test is whether or not a cause is sufficient to see whether it could
have been avoided by the party by the exercise of due case and
attention.
6. In light of aforesaid legal pronouncement, it needs to be
seen as to whether defendant has made out sufficient cause for
condoning the delay or whether plaintiff has succeeded in bringing on
record inaction, negligence, malafides on part of defendant, to reject
the notice of motion of defendant.
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7. Defendant has affirmed on oath the reasons for which
delay is caused in filing written statement. According to him, defendant
being statutory and public body and a vast organization, due to heavy
workload this defendant failed to file the written statement in time.
Defendant was required to take instructions from different departments
and it was not possible to get the draft of written statement approved
within stipulated time. For aforesaid reasons, there is delay which is
unintentional and not deliberate.
8. Defendant has made out reasons in their notice of motion
as to why it could not file written statement within time. As no doubt is
created in aforesaid reasons, it can be safely said that defendant has
made out sufficient cause to condone the delay. No inaction, negligence
or malafides are pointed out by plaintiff. Therefore, Defendant has
made out sufficient cause can be concluded.
9. The observations in the cited case of R.N. Jadi & Brothers
V/s. Subhashchandra reported in (2007) 6 SCC 420 further come to
aid of defendants in which it is observed that, Procedural law is
handmaid of justice. In an adversarial system, no party should
ordinarily be denied the opportunity of participating in the process of
justice dispensation. Unless compelled by express and specific language
of the statute, the provisions of CPC or any other procedural enactment
ought not to be constructed in an manner which would leave the court
helpless to meet extraordinary situations in the ends of justice.
Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice. Therefore, the
arguments of learned advocate for defendant needs to be countenanced
as against the arguments of learned advocate for plaintiff.
10. The defendant corporation is served with writ of summons
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on 06.12.2017. Therefore, there is delay of more than 2 years in
moving this notice of motion. Though there is nothing on record that
the delay caused is malafide, the delay is not short delay. Though
defendant corporation is statutory body, law is equal for all. The
mandate of Order 8 Rule 1 of Code of Civil Procedure is equally
applicable to defendant corporation. Applying the principles laid down
in the aforesaid citations and Order 8 Rule 1 of CPC being directory in
nature, suit needs to be decided on merits by giving opportunity to
defendant. Therefore, notice of motion of defendant deserves to be
allowed on costs. Therefore, I proceed to pass following order.
ORDER
1. The Notice of Motion No.1934/2019 is hereby allowed subject to
costs of Rs.2,000/(Rs. Two Thousand Only) to be paid by
defendant to plaintiff on or before next date.
2. Upon depositing the costs as per clause (1) of this order, the
order dated 14.08.2018 passed against defendant shall stand set
aside so also the delay caused in filing written statement shall
stand condoned and the written statement tendered on record by
defendant shall be taken on record.
3. The Notice of Motion No.1934/2019 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.06)
Date : 16.01.2020 City Civil Court, Gr. Bombay
Dictated on : 16.01.2020.
Transcribed on : 16.01.2020.
Signed on : 21.01.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.01.2020, 4.44 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
16.01.2020
JUDGMENT/ORDER signed by
P.O. on
21.01.2020
JUDGMENT/ORDER uploaded on 21.01.2020
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