Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010055082019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1985 OF 2019
IN
LONG CAUSE SUIT NO. 163 OF 2019
Govind Maruti Jagdale ... Plaintiff
V/s.
1. Navaji S/o. Maruti Jagdale and Ors. ...Defendants
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI ( C.R.NO.06)
DATE : 20/11/2021
Adv. Mr. Motirave for the plaintiff.
Adv. Mr. Yadav for the defendant No.1
Adv.Ms. Meena Dhuri for the defendant/BMC.
ORAL ORDER
1. This Notice of Motion is taken out by the defendant No.1 to
condone the delay of 83 days in filing written statement and permission
to file written statement.
2. The plaintiff has filed reply to the same.
3. Perused the Notice of motion and say. Heard the learned
Advocates for the parties at the length.
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2 N/M No.1985/2019
4. It is contended by the defendant no.1 that he has not
served with writ of summons in this suit. He received a letter dated
02.03.2019 enclosing therewith a copy of the plaint and the notice of
motion taken out by the plaintiff and informing him that the plaintiff
would be moving this Court on 13.03.2019 for adinterim relief. The
defendant no.1 received the said letter dated 02.03.2019 on 13.03.2019
and as such he could not attend this Court on 13.03.2019. The
defendant No.1 do not know English and as such he was unable to
understand anything about this suit. Hence, he informed his son about
the same who perused the papers of the above suit and informed him
about the details of the present suit filed by plaintiff. In view of the
above, he could not appoint an advocate for attending the matter and
consequently could not file his written statement within the stipulated
time. The delay in filing the written statement was not deliberate.
Hence, delay was caused for filing written statement.
5. The procedure as to limit for filing written statement and
consequences of not filing the same are given in Order 8 of Civil
Procedure Code. Order 8 Rule 10 of the C.P.C., has laid down a
procedure about passing of a decree in favour of the plaintiffs, if
defendants fail to file his written statement. This discretion is not
exercised by the court in favour of the plaintiffs for the reason of failure
of defendants to file their written statement.
6. In this background, if the defendant no.1 is allowed to file
his written statement, it will not cause any prejudice to either plaintiff
or to the overall hearing of this suit. If defendant No.1 is allowed to file
written statement and if the suit decreed in favour of the plaintiff, it
would be a decree on merit. On the other hand, if the defendant is not
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3 N/M No.1985/2019
allowed to file their written statement, it would result into a decree
which would be technically exparte decree. Therefore, this court is of
the opinion that evidence of the plaintiff has not commenced and
therefore, defendant should be allowed to file his written statement in
order to enable this court to decide the suit on merit.
7. There is one more reasonable important point that the
written statement is filed after the period of 90 days of the service of
summons/notice. The written statement along with this application is
being filed after the period of 90 days. However, this court is of the
opinion that for the stated reasons the defendants are to be allowed to
file their written statement. Filing of written statement by this
defendant beyond the prescribed period of time framed has not caused
any serious prejudice to the plaintiff. Hence, the order.
ORDER
1. The Notice of Motion No. 1985/2019 is allowed.
2. The delay of 83 days caused for filing written statement of
the defendant No.1 is condoned in the interest of justice.
3. The defendant No.1 is granted permission to file
his written statement in the interest of justice .
4. The Notice of Motion No.1985/2019 is disposed off.
(Smt. S.G.Shaikh)
Date 20/11/2021 Judge,City Civil Court,
Gr.Mumbai.
Dictated on : 20/11/2021
Typed on : 20/11/2021
Signed on :
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4 N/M No.1985/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/11/2021 05.00 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
20/11/2021
JUDGMENT/ORDER signed by
P.O.on
20/11/2021
JUDGMENT/ORDER uploaded on 20/11/2021
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