Order 1

Order Details: Notice of Motion
Pdf Text: NM.No.2392/2026 - 1 - SU.No.1502/2025
MHCC010040852026
Presented on : 23-03-2026
Registered on : 23-04-2026
Decided on : 05-05-2026
Duration : 00Y 01 12D
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.2392 OF 2026
IN
S. C. SUIT NO.1502 OF 2025
Mrs. Siddhi Mahesh Sarang .. Plaintiff
Versus
1. Mr. Yashwant Dinaji Sarang and
Others.
.. Defendants
Appearance :-
Ld. Advocate Rahul Tiwari for the Plaintiffs.
Ld. Advocate Vimal Tiwari h/f Advocate M. S. Singh for the
Defendants.
CORAM: HIS HONOUR JUDGE
S.M. BUKKE
COURT ROOM NO.03
DATE: 05th May, 2026.
O R D E R
(Dictated and Pronounced in open Court)
1. The Defendant No.1 and 2 in Suit No.1502 of 2025 have
preferred present Notice of Motion seeking condonation of delay of 108
days in filing the Written Statement.
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2. The Plaintiff has instituted the suit for declaration and
perpetual injunction. Writ of Summons was duly served upon
Defendant Nos.1 and 2 in the month of December-2025. The suit was
fixed before court on 8.12.2025, but the court was not seating on that
date, therefore, Vakalatnama is not filed. Another litigation is also
going on between plaintiff and defendant before different authorities
and Court. Due to old age and health issues it is difficult for defendant
to attend the Court. The defendants are senior citizens therefore, they
are unable to provide instructions to their advocate, on earlier stage.
The plaintiff suppressed material facts and claiming right over suit
premises on the basis of concocted story. The delay is not intentional it
is caused due to health and financial problems of the defendants.
Therefore, the defendants craved to condone the delay. The delay
occasioned is purely due to circumstances beyond the control of the
Defendants. The same is neither deliberate nor intentional, but bona
fide.
3. The Defendants submit that they have a strong and
meritorious case to contest. If the delay is not condoned, grave
prejudice and irreparable loss will be caused to the defendants, without
any fault on their part. It is therefore in the interest of justice
defendant craved to take a lenient view and condone the delay of 108
days in filing the Written Statement.
4. The Plaintiff has strongly opposed the notice of motion
contending that day-to-day delay is not explained. The plaintiff is
widow. The defendant Nos.1 and 2 are father-in-law and mother-in-
law of the plaintiff. The defendants No.1 and 2 intentionally caused
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delay in the matter. Therefore, the plaintiff craved to reject the Notice
of Motion with costs.
5. Heard the learned Advocates for plaintiff as well as
defendants. Perused record.
6. The Written Statement was not filed within the period
prescribed under Order VIII Rule 1 of the Code of Civil Procedure,
1908, which mandates filing within 30 days from service of summons,
extendable up to 90 days.
7. On perusal of record it appears that present suit is
instituted on 19.03.2025. The writ of summons was served on
defendant Nos.1 and 2 on 5.11.2025. The defendants No.1 and 2
appeared before this Court on 23.03.2026 through their advocate and
tendered present notice of motion. They have also filed written
statement. The delay mention above of 108 days has been caused due
to bonafide reasons as stated above i.e. circumstance beyond control of
the defendant.
8. The delay is neither deliberate nor willful but occasioned
due to bona fide circumstances i.e. old age of defendants, health issues
and communication gap between the defendants and their advocate.
The ailments like blood-pressure, sugar, hypertension, as well as unable
to provide instructions to advocate at earliest stage are the proper
causes for delay. The Defendants have acted with reasonable diligence,
and no mala fides or gross negligence are attributable.
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9. “Sufficient cause” under Section 5 of the Limitation Act,
1963 must be construed liberally to advance substantial justice. The
word “shall” in Order VIII Rule 1 CPC is directory, not mandatory, and
must be interpreted to advance the cause of justice.
10. Refusal to condone the delay would result in grave
prejudice and miscarriage of justice. Procedural rules are intended to
facilitate adjudication on merits, not to obstruct it.
11. Unless the reliefs prayed for are granted, irreparable loss
and prejudice will be caused to the Defendants, which cannot be
compensated in terms of money. The balance of convenience lies in
favour of the Defendants, who have a strong case on merits.
12. On perusal of the record and submissions, this Court finds
that the delay is attributable to the old age of defendants, health issues
and communication gap between the defendants and their advocate.
The ailments like blood-pressure, sugar, hypertension, as well as unable
to provide instructions to advocate at earliest stage are the proper
grounds for delay. However, no medical certificates is attached with
the notice of motion. However, in the old age such health issues may
occur. The Defendants have acted with reasonable diligence. The
length of delay is neither considerable nor decisive. The defendants
have shown sufficient cause for condonation of delay. No mala fides or
gross negligence are demonstrated.
13. The Hon’ble Supreme Court in
Salem Advocate Bar
Association, T.N. v. Union of India has clarified that the use of the word
“shall” in Order VIII Rule 1 CPC is directory and not mandatory, and the
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provision must be interpreted in a manner that advances the cause of
justice rather than defeats it.
14. It is matter of record that plaintiff is widow. The defendant
Nos.1 and 2 are in-laws of the plaintiff. The inconvenience caused to
the plaintiff can be compensated by imposing costs under Section 35 of
C.P.C. It is costs for causing delay. The defendants are responsible for
causing delay to file written statements. Therefore, this court inclined
to impose costs.
15. In the present case, refusal to condone the delay would
result in grave prejudice and miscarriage of justice. Procedural rules are
intended to facilitate justice, not to obstruct it. The notice of motion
deserves to be allowed subject to costs. Hence, I pass following order:
O r d e r
1. Notice of Motion No.2392 of 2026 made absolute in terms of
prayer clause (a) subject to payment of costs of Rs.2,000/-
payable to plaintiff within 15 days.
2. If defendants fail to pay the costs within 15 days, this order
automatically stands vacated.
3. The Written Statement be exhibited on depositing of the costs.
4. Copy of Written Statement be served upon plaintiff within
stipulated time.
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5. Accordingly, Notice of Motion No.2392 of 2026 stands disposed
off.
(S.M. BUKKE)
Judge,
City Civil Court,
Date: 05.05.2026 Mumbai.
Dictated directly on computer : 05.05.2026
Printed on : 05.05.2026
Signed on : 05.05.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME 05.05.2026/11.28 a.m.
NAME OF STENOGRAPHER (Grade-1) (Mrs. Pradnya S. Naik)
Name of the Judge (With Court room no.) Shri S.M. BUKKE
(C.R. No.03)
Date of Pronouncement of JUDGMENT/
ORDER
05.05.2026
JUDGMENT/ORDER signed by P.O. on 05.05.2026
JUDGMENT/ORDER uploaded on 05.05.2026
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