Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.1942 OF 2019
IN
S.C. SUIT NO.853 OF 2016
CNR NO.MHCCO10053962019
Mrs.Savitri w/o. Ashok Hargude ..Plaintiff
V/s
Mr.Ashok Namdeo Hargude and ors ..Defendant
Ld.Adv. Singh for plaintiff.
Adv. Tejas Gonsavlekar h/f Trupti Gohil for deft. no. 1.
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 08/07/2019
ORAL ORDER
1. The defendant no.1 has tendered this notice of
motion interalia praying for condonation of delay in
filing the written statement.
2. Perused the record. Heard.
3. Ld. Counsel for defendant no.1 submitted that
defendant has not received the writ of summons. The
defendant received letter of the advocate for the
plaintiff dated 25/04/2016 alongwith copy of the
notice of motion and affidavit and plaint in the suit.
After receiving the same letter by way of private
service, defendant no.1 came to know about the suit.
The Court has passed 'No W/S' order on 21/11/2018.
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4. Ld. Counsel for defendant no.1 applied for certified
copy of writ of summons and it was informed that
defendant no.1 has not received from the office of
Sheriff of Mumbai. The service which was made on
the defendant was private service. Under such
circumstances, defendant no.1 prayed for
condonation of delay.
5. Ld. Counsel for the plaintiff opposed the notice of
motion on the count that contention raised by the
defendant no.1 is claims that he is residing at
Kolhapur is totally false. Inspite being married, he
got married with defendant no.1 which is a serious
offence. Only for the purpose of gaining sympathy of
this Court, an attempt is being made that he is
residing at Kolhapur. Sufficient cause is not made
out.
6. On perusal of the record it appears that the Court
proceeded without written statement of defendant
no.1. The plaintiff has filed affidavit of service to
defendant no.1 by RPAD. It appears that the
defendant was served by private service i.e. on
03/05/2016. The Court proceeded without written
statement against defendant no.1. At this stage, the
Court has to consider that the rights of the parties are
not taken away by merely adopting hyper technical
and pedantic approach. Defendant no.1 wish to
proceed with the matter on merits. The provisions of
order 8 of the C.P.C. are directory. But at the same
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time, if the plaintiff is prevented from further
proceedings with his suit and therefore the plaintiff is
required to be compensated for the same. In view of
the same, notice of motion requires consideration.
Hence, it is expedient to pass following order:
ORDER
1. Notice of Motion No. 1942/2019 is allowed in terms of
prayer clause (a) subject to cost of Rs. 2,000/ to be paid by
the defendant no. 1 to the plaintiff or her advocate within a
period of four weeks from today.
2. Payment of cost is subject precedent.
3. Notice of Motion is disposed of accordingly.
08/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 08/07/2019
Transcribed on : 11/07/2019
Signed on : 20/07/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
20/07/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
08/07/2019
Judgment and order signed by P.O. 20/07/2019
Judgment/order uploaded on 20/07/2019
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