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.1976 OF 2019
CNR NO.MHCC01-005490-2019
IN
S.C. SUIT NO.7219 OF 2005
M/s.M.D.Enterprises ..Plaintif
V/s
1. Anant Mahadeo Pethe and ors ..Defendants
Ld. advocate Mr.Lulia for the plaintif
Ld. advocate Mr.Abhishek Mishra for defendant no.1
Ld.advocate Shashank Thatte for defendant no.3
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 29th JANUARY, 2020
ORAL ORDER
1. This notice of motion is tendered by
defendant no.3 interalia for condoning the
delay in fling the written statement and for
taking the written statement on record.
2. Heard Ld. Counsel for the plaintif and
defendant no.3.
3. Ld. Counsel for defendant no.3 submitted that
defendant no.3 was sufering from various
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ailments. Originally the suit was fled before
the Hon'ble High Court wherein his father
Mr.Prabhakar Pethe was a party and after his
demise on 02/01/2007, he has been
substituted as a legal heirs. The writ of
summons was not served upon him and hence
there is no time prescribed within which the
written statement was to be fled. After
transfer of the suit to this Court, it is governed
by the Bombay City Civil Court Rules.
Defendant no.3 has fled notice of motion for
challenging the jurisdiction of this Court. If
the defendant no.3 would have succeeded in
the above notice of motion, then, there would
not have been any need for fling any written
statement. The suit was under the caption of
framing issues till fling of the present notice
of motion. He would submit that Hon'ble High
Court in Civil application No.842 of 2018 in
appeal from order No.598 of 2018 has granted
liberty to defendant no.3 to take out this
notice of motion and accordingly he has taken
out this notice of motion. He would submit
that the matters are hotly contested and
technical aspect should not come in the way.
He prayed for allowing this notice of motion.
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4. The notice of motion is opposed vehemently
by the plaintif. It is the contention of the
plaintif that this notice of motion is devoid of
merits based upon conjecture and surmises.
Defendant no.3 has not explained delay and
the latches. The notice of motion is nothing
but abuse of process of law. The notice of
motion is fled by defendant no.3 in most
casual manner with a view to get an order on
it as a matter of course, as a matter of right
and for mere asking. Sufcient cause has not
been explained and the delay is deliberate.
The defendant no.3 has produced his medical
reports but he was contesting other
proceedings in this matter. The plaintif
argued that the presumption and assumption
on the part of defendant no.3 that he would
succeed in raising the ground of pecuniary
jurisdiction, in that event it was not necessary
to fle the written statement is nothing but
after thought. The present notice of motion is
to be decided on it's merits. Defendant no.3
after receipt of the amended copy of the
plaint, cannot take the defence that no writ of
summons was served upon him. There is no
appropriate application of delay. Hence,
plaintif prayed for dismissal of the notice of
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motion.
5. On perusal of the order of the Hon'ble High
Court dated 08/04/2019, it reveals that the
Hon'ble High Court has given liberty to
defendant no.3 to fle the appropriate
application seeking permission to fle written
statement. This Court is directed to decide
this application on it's own merits. Therefore,
the direction of Hon’ble High Court is to
decide present notice of motion on its merit.
By order dated 14/12/2012, suit proceeded
without written statement against defendant
no.3. At that time, Ld. Counsel for defendant
no.3(earlier defendant no.5) was present
when the said order was passed. It means
that the writ of summons has been served
upon defendant no.3 and he was unable to fle
written statement within time. So, the
argument that the writ of summons was not
served does not hold good. The learned
counsel for plaintif submitted that once the
defendant no.3 appeared in the matter there
is no need for issuance of separate writ of
summons. In order to substantiate his stand,
he placed reliance upon the judgment of
Hon'ble Bombay High Court in the case
of Mr.Suresh s/o Daduram Abnave V/s
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Municipal Corporation of Greater Mumbai
and others, 2014(3) All MR 756. It is held
by the Hon’ble Bombay High Court that,
'Admittedly the contesting respondents were
duly served and recorded also in the roznama
accordingly. The parties represented through
their advocates. The vakalatnama, therefore,
once fled by the advocate and/or if the
advocate appears on behalf of the respective
parties, the vakalatnama cannot be dissected
and/or treated for fling only for notice of
motion and not for any other proceedings.
Considering the provisions so recorded above
once the party appears through his advocate
and due vakalatnama is fled, it is for all the
proceedings. Therefore, to say that a
separate summons required to be served to
the respondents/defendants is unacceptable.
No fresh service of writ of summons is
contemplated in such circumstances. The
advocate's appearance, not permitted for
want of specifc provision and/or instruction
for a part of the proceeding arising out of the
suit. The vakalatnama cannot be conditional
and restricted to any part of the proceedings.
The learned Judge, therefore, in my view,
wrong in dismissing the suit for want of
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service of writ of summons.'
Thus, in view of the law laid down by the
Hon'ble Bombay High Court, the stand of
defendant no.3 that separate writ of summons
was required to be issued does not hold good.
6. Ld. Counsel for the plaintif to substantiate his
argument submitted that if a party taking a
stand to get rid of the bar of limitation could
not be encouraged to get any premium on the
falsehood on his part by condoning delay. He
placed reliance upon the judgment of
Hon'ble Supreme Court in the case of
Pundlik Jalam Patil (D) by Lrs V/s
Exe.Eng. Jalgaon Medium project and
anr, 2008(6) All MR 954 (S.C.)
7. He also placed reliance upon following
judgments to elaborate and understand the
true import of sufcient cause for condoning
the delay.
(a)Balwant Singh(dead) Vs Jagdish Singh and
others of Hon'ble Apex Court, 2010(6) All MR
480.
(b)Maniben Devraj Shah V/s Municipal
Corporation of Brihan Mumbai, of Hon'ble
Apex Court, 2012(3) All MR 450(S.C).
(c)P.K.Ramachandran V/s State of Kerala and
anr of Hon'ble Apex Court, JT 1997(8)S.C.189.
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(d)Victor Albuquerque V/s Saraswat Co-
operative Bank Ltd and others of Hon'ble
Bombay High Court (Goa bench) AIR 1998
Bombay 346
8. I have given conscious consideration to the
law enunciated in the above cited judgments.
There is no quarrel about the law laid down in
above cited judgments.
9. Ld. Counsel for defendant no.3 placed reliance
upon the judgment of Hon'ble Apex Court
in the case of Collector, Land Acquisition,
Anantnag V/s Katiji, 1987 AIR SC 1353.
The Hon'ble Apex Court held that 'when
substantial justice and technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim to
have vested right in injustice being done
because of non-deliberate delay.'
10. He also placed reliance upon the
following judgments:-
(a) Vimalkumar Nathmal Goenka V/s Vinod
Kumar Nathmal Goneka and others of Hon'ble
Bombay High Court, 1999(supp.) Bom C.R.
528
(b)Naresh Kumar V/s Meer Singh(dead)
through his Lrs and others of Hon'ble Delhi
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High Court in FAO(OS)41 of 2014 and CM
No.1032/2014 decided on 15/07/2014.
11. I had given conscious consideration to
the law laid down in the above cited
judgments. No doubt the Court can adopt
liberal approach in entertaining this type of
application if sufcient cause for delay is
pointed out. The present matter has not
reached for the stage of evidence. The matter
was posted for issues on 13/02/2013. The
notice of motion was tendered when the
matter was for issues. No right has accrued in
favour of the plaintif which can be taken
away if the present notice of motion is
allowed. The stand of defendant no.3 is that
writ of summons was not served upon him.
Ld. Counsel for defendant no.3 argued that
transfer of the matter from Hon'ble High Court
to this Court would necessitated for fresh
service of writ of summons. These statement
of defendant that writ of summons was not
served cannot be said to be false statement
to get rid of the bar of limitation. Thus as
discussed above, by order of proceeding
without written statement against defendant
no.3, no right had accrued in favour of plaintif
and no prejudice would be caused to plaintif
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if defendant no.3 is allowed to fle his written
statement and to prosecute the suit. Delay
and latches are on the part of defendant no.3
can be taken into account by properly
compensating plaintif for the same. It is
settled position of law that in this type of
application, hyper technical and pedantic
approach should not be adopted. The
substantial rights of parties are involved.
Merely on technicality the substantial rights of
defendant no.3 cannot be negated when the
trial in the matter has not commenced.
12. In view of the above discussion, this
notice of motion needs consideration. Hence,
it is expedient to pass following order:-
ORDER
1. N/M No.1976/2019 is made absolute in
terms of prayer clause (a) subject to cost
of Rs.7,500/- to be paid by the defendant
no.3 to the plaintif within a period of
four weeks from today.
2. Payment of cost is subject precedent.
3. On compliance of the order, written
statement be taken on record.
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4. N/M No.1976/2019 is disposed of
accordingly.
29/01/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 29/01/2020
Transcribed on: 06/02/2020
Signed on: 14/02/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
15/02/2020 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
29/01/2020
Judgment and order signed by P.O. 14/02/2020
Judgment/order uploaded on 15/02/2020
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