Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 171018 SUIT Suit 437/2017 1
CNR NO.MHCC01 0056042018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1710 OF 2018
IN
SUIT NO.437 OF 2017
R C Advertising Co.Pvt.Ltd. .. .. Plaintiffs
Versus
Aries Films & Anr. ...Defendants
Shri.Balvani advocate for Defendant.
Smt.Needhima Mangaonkar advocate for plaintiff.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
CR no. : 32
Dated : 17th September 2018
ORDER
1. Defendant No.1 & 2 taken out this motion for condonation of
delay of 177 days in filing written statement.
2. Due to illness of defendant No.2 he was unable to file the written
statement within stipulated date. Defendant was suffering from
Tuberculosis and was even intermittently hospitalized for different
periods from 27/12/2016 to 30/12/2016 and again from 26/05/2017
to 28/05/2017, and again 05/06/2017 to 08/06/2017 , 06/10/2017 to
10/10/2017 and finally from 15/01/2018 to 20/01/2018. Due to this
reasons delay has been caused in filing the written statement, hence,
-- 1 of 4 --
NM 171018 SUIT Suit 437/2017 2
prays that delay be condoned in the interest of justice.
3. Plaintiff filed the reply on the motion. The motion does not
mention the number of days of delay of which condonation is sought.
Defendant does not make out any case for condonatin of delay in filing
the written statement. Defendants were served on 16/10/2017. From
the service of summons till filing of motion the delay has not been
specifically explained, therefore, motion is liable to be dismissed with
costs.
4 Heard learned advocate Shri.Balvani for Defendant and
Smt.Needhima Mangaonkar for plaintiff.
5 Order VIII Rule 1 of Civil Procedure code, this provision is
procedural and directory in nature. Basic object of incorporation of
order VIII Rule 1 is to curb mischief laid by unscrupulous litigants who
caused delay in disposal of cases. Departure from time schedule is
permissible in cases where the circumstances are beyond the control of
parties and in case when it is required to prevent injustice to the other
side. Reliance in that regard can be placed on the law laid down in case
of Sambhaji & others Vs. Gangabai and Others ((2008) 17 SCC 117)
and in case of State of Goa and others Versus H.B.Singh and
company ((2012)(4) ALL MR 750). By keeping well in mind this basic
requirement let me turn towards the factual aspect.
6. Writ of summons was served on defendants on 16/10/2017.
Defendant No.2 stated on affidavit that he was suffering from
Tuberculosis and for the treatment he was hospitalized. To support his
contention he has placed on record the medical papers .
-- 2 of 4 --
NM 171018 SUIT Suit 437/2017 3
7. Rules of procedure are made to advance cause of justice. Equity
and substantial cause of justice always demands opportunity, hence,
with a view to decide real point in controversy once for all on merit and
with a view to avoid multiplicity of delay required to be condoned.
However,considering the reason assigned by defendant for condonation
of delay, if the cost of Rs.2000/ is imposed on defendants and if that
cost is ordered to be paid to the plaintiff, then, it will be justifiable.
Hence, I pass following order.
ORDER
1. Notice of Motion 1710/2018 is made absolute in terms of prayer
clause (a) subject to cost of Rs.2000/(Rs.Two Thousand only) be
paid to the plaintiff on or before next date.
2. After payment of cost, permission is granted to the defendant for
filing their written statement.
Date : 17/09/2018 (Pushpa N. Rao)
Ad hoc Dist.Judge
Bombay City Civil Court
Greater Mumbai
Direct typed on computer: 17/09/2018
Signed by HHJ on : 17/09/2018
-- 3 of 4 --
NM 171018 SUIT Suit 437/2017 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/09/2018 at ( 12.25p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room No.) HHJ Smt. Pushpa N. Rao
(Court Room no.32)
Date of Pronouncement of JUDGMENT/ORDER 17/09/2018
JUDGMENT/ORDER signed by P.O.on 17/09/2018
JUDGMENT/ ORDER uploaded on 19/09/2018
.
-- 4 of 4 --