Final Order 1

Order Details: Chamber summons
Pdf Text: CH.S.1059/19 SUM.SUIT 859/18 1
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 1059 of 2019
IN
SUMMARY SUIT NO. 859 of 2018
(Under Order XXXVII of the Code of Civil Procedure 1908)
(CNR.NO.MHCC010056862019)
Mrs.Paulomi Chandrakant Nagarsheth ...Plaintiff
V/s.
Deepali alias Gita Deepak Kantak and Anr. ....Defendants
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C. R. No.: 28)
DATE : 20TH NOVEMBER 2019
Advocate Ms.Swati Kapadia for Plaintiff.
Advocate Ms.Priyanka Polar for Defendants.
ORAL ORDER
1. Read the application and say to it.
2. Heard Ld. advocates on behalf of both the parties.
3. By present chamber summons defendant No. 1 requested to
condone delay of 138 days caused in filing the vakalatnama and the
appearance. The plaintiff resisted the application contending that no
good ground is made out to allow the application and condone the
delay.
4. Considering the material on record and submissions made on
behalf of the parties, points arise for determination alongwith my
findings thereon for the reasons recorded are as under:
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POINT FINDINGS
1. Whether there is sufficient cause
to condone the delay ?
Affirmative
2. What order ? As per final order
REASONS
As to points no. 1 and 2
5. The Ld advocate on behalf of defendant No. 1 argued that though
the summons was served on 11.09.2018, defendant No. 1 was under
impression that the matter is not related to her. In January 2018 her
husband died. Therefore, she was under shock and trauma.
Consequently, she could not appear. In February, engaging present
advocate she submitted present application. It is also contended that
defendant no. 1 has weak financial condition. On these grounds Ld
advocate requested to condone the delay.
6. On the other hand, Ld. advocate on behalf of the plaintiff argued
that there is no satisfactory explanation regarding the period from
September 2018 till January 2018. The contention of defendant no. 1,
that after death of her husband she resided at her native place at Goa, is
not acceptable as her child is taking education in Mumbai and
therefore, she may not leave Mumbai. Ld. advocate argued that no
grounds are made out to condone the delay. Therefore, she requested to
reject the chamber summons. Alternatively, she submitted that, if the
application is allowed on humanitarian grounds, heavy costs must be
imposed on defendant No.1.
7. The reason mentioned in para 4 of the application is that on
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09.01.2018 husband of defendant no. 1 expired. It can be gathered that,
due to death of husband, defendant no. 1 would certainly be in shock
and under trauma. Therefore, she may not have been able to recover
from said mental condition and approach the advocate immediately. As
such, the reason mentioned in respect of period from January 2018 is
certainly satisfactory. As regards the delay in respect of the period from
September till December, defendant no.1 contended that she was under
impression that the matter is not related to her. However, same
contention is not acceptable as the summons clearly shown her name as
party required to appear before the court. Still it may be noted here that
the delay is of only 138 days, out of which the reason in respect of the
period from January till filing of present application is satisfactory and
considering that the delay is of short period, in order to decide the
matter on merits by prescribed procedure, it is just and proper to
condone the delay subject to costs. Hence, point no. 1 is answered in
affirmative and in answer to point no. 2 order as follows is passed.
ORDER
1. The Chamber summons No.1059 of 2019 is allowed as under
2. Delay caused to defendant No.1 to file appearance and
vakalatnama is condoned and defendant no. 1 is permitted to appear in
the matter subject to costs of Rs. 3000/ (Rupees Three Thousand
only)to be paid to the plaintiff by defendant no. 1.
3. Chamber summons No.1059/2019 is disposed of accordingly.
(DEEPAK L. BHAGWAT)
Judge,
Date: 20/11/2019 City Civil Court,Gr. Bombay
Dictated on : 20/11/2019
Transcribed on : 20/11/2019
Signed on : 22/11/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
28/11/2019 at 10.40a.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ DEEPAK L. BHAGWAT
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
20/11/2019
Judgment/Order signed by P.O. on 22/11/2019
Judgment/Order uploaded on 28/11/2019
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