Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM NO.20272019 IN S C SU 75562003
MHCC010056092019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2027 OF 2019
IN
S.C. SUIT NO. 7556 OF 2003
M/s. Kandoi Haribhai Damodar Mithaiwala ] ...Plaintiff.
Versus
MHADA & Others ]…Defendants.
Appearance:
Ld Advocate Shri. Vishvam Thakar for the plaintiff.
Ld Advocate Shri. Rajendra Mishra for Defendant No.2.
CORAM : SHRI. K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 14/03/2022
ORAL ORDER
1) Defendant No.2 has taken out this Notice of Motion for
condonation of delay in filing its written statement and for setting aside
order dtd.27/2/19 of recording evidence without written statement of
defendant.
2) Perused the notice of motion, affidavit in support of same
and record. Heard arguments advanced by Ld Advocate for defendant
No.2 and Ld Advocate for plaintiff. Ld Advocate for defendant No.2
argued that writ of summons was not served upon defendant No.2 and
copy of amended plaint was served upon its Advocate on 17/12/18.
-- 1 of 5 --
2 NM NO.20272019 IN S C SU 75562003
However, defendant No.2 was under impression that copy of amended
plaint will be served upon it. However, till date copy of of amended
plaint is not served upon the defendant No.2. The written statement of
defendant No.2 is ready and it was affirmed in year 2019 itself. There is
just cause for condonation of delay and setting aside the order as prayed.
No prejudice will be caused to the plaintiff if the notice of motion is made
absolute.
3) On the other hand, Ld Advocate for plaintiff argued that
after transfer of the suit from the High Court in this court, plaintiff
carried out amendment to the plaint. Therefore, there is huge delay for
filing written statement and defendant No.2 has not explained the delay.
Therefore, notice of motion be dismissed.
4) Perusal of the record reveals that originally the suit was filed
in the Hon'ble Bombay High Court in year 2003 and later on due to
enhancement of pecuniary jurisdiction it was transferred to this court.
From the record it appears that defendant No.2 appeared in present
matter long back after filing of chamber summons by plaintiff and the
chamber summons taken out by plaintiff for amendment of the plaint was
allowed on 29/11/18 and the order that suit to proceed without written
statement of defendants came to be passed on 27/2/19. It appears that
defendant No.2 has taken out the present notice of motion on 26/4/19
when suit was adjourned for evidence without written statement.
5) In the present matter plaintiff has not disputed the fact that
copy of amended plaint was served upon the Advocate of defendant No.2
on 17/12/18 and copy of amended plaint was not served upon the
defendant No.2. Plaintiff has not challenged the contention of defendant
No.2 that writ of summons was not served upon defendant No.2. It
appears that after amendment to the plaint the matter was not fixed for
-- 2 of 5 --
3 NM NO.20272019 IN S C SU 75562003
filing additional written statement if any and on 27/2/19 the order that
suit to proceed without written statement against all defendants came to
be passed and matter was adjourned for evidence without written
statement. It appears that the amendment was carried out on 7/12/18 in
the plaint. From the affidavit in support of notice of motion it appears
that delay is not deliberate. Plaintiff also failed to point out the date of
service of writ of summons to defendant No.2. From the record it
appears that since long the matter was kept for hearing on chamber
summons taken out by plaintiff. It appears that plaintiff has also not filed
its evidence till date. Therefore, from the affidavit in support of notice of
motion and above discussion there appear just cause for non filing of
written statement by the defendant No.2 earlier or after amendment of
plaint. Therefore, defendant No.2 has demonstrated just cause for
condonation of delay in filing written statement and for setting aside the
order that suit to proceed without written statement and for adjourning
the matter for evidence without written statement to the extent of
defendant No.2.
6) Considering the matter on record and above discussion in
the interest of justice it will be appropriate to allow the notice of
motion. Therefore, the notice of motion deserves to be made
absolute. Hence, Court proceeds to pass following order:
ORDER
1) Notice of Motion No.2027/2019 is made absolute.
2) Written statement of Defendant no.2 be taken on record if
tendered by Defendant no.2 on or before next date.
-- 3 of 5 --
4 NM NO.20272019 IN S C SU 75562003
3) Notice of Motion No.2027/2019 is disposed off accordingly.
Date : 14/3/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on : 14.3.2022.
Checked on : 15.3.2022.
Signed on : 16.3.2022.
-- 4 of 5 --
5 NM NO.20272019 IN S C SU 75562003
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16/3/2022.
NAME OF STENOGRAPHER : Mrs. S.A. Shekade.
Name of the Judge (With Court
Room no.)
HHJ Shri. K.P. Kshirsagar.
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
14/3/2022.
JUDGMENT/ORDER signed by
P.O. on
16/3/2022.
JUDGMENT/ORDER uploaded
on
16/3/2022.
-- 5 of 5 --