Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010057462018
CNR NO. MHCC010057462018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1753 OF 2018
IN
SUIT NO.3804 OF 2012
(HIGH COURT SUIT NO.1839 OF 2012)
Om Ratan Cooperative Housing Society ]
Limited ]… Plaintiffs.
V/s.
1. Mr. Shailendra Singh and another. ]... Defendants.
Appearances :
Ld. Adv. Ms. Mery i/b Induslaw for plaintiff.
Ld.Adv. Mr. Shukla for defendant.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 29th March, 2022
ORAL ORDER
1. The present Notice of Motion is taken out by the defendant
for dismissal of the suit for want of service of writ of summons to
defendant No.1. In alternate the defendant sought the prayer of setting
aside the order dated 25.02.2016 for proceeding the suit without
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written statement of defendant No.1 and permitting him to file written
statement.
2. It was submitted by the defendant that the plaintiff filed
the present suit before the Hon'ble High Court. The suit was later on
transferred to this Court. The plaintiff had taken out the Notice of
Motion for adinterim relief. Thereafter the plaintiff had not served the
defendant with the writ of summons. Therefore, the defendant could
not file his written statement and on 25.02.2016 the Court has passed
order of proceeding without written statement of defendant No.1. The
defendant No.1 could not file his written statement as he was not aware
about the service of writ of summons and therefore the order be set
aside. There is no negligence on the part of defendant. If the Notice of
Motion is not granted the defendant No.1 will suffer great loss and
therefore the Notice of Motion be made absolute.
3. The plaintiff filed reply to the application and submitted
that the Notice of Motion is misconceived and intended to harass the
plaintiff. No reason has been made out by the defendant No.1 and
therefore the Notice of Motion be dismissed.
4. Heard the Learned Advocate for defendant. Plaintiff
remained absent and failed to argue on the Notice of Motion.
Admittedly the suit was filed before the Hon'ble High Court and later on
it was transferred to this Court. The plaintiff has taken out the Notice
of Motion for interim relief. It seems that the defendant No.1 appeared
in the Notice of Motion but thereafter had not filed his written
statement. As per the Order dated 25.02.2016 the defendant was
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proceeded without written statement. It seems that the defendant No.1
could not file his written statement. As the matter was transferred to
this Court the defendant had not filed his written statement. The
defendant No.1 being aware of the pendency of the present suit as he
was contesting the Notice of Motion for adinterim relief, but could not
file his written statement. It seems that if the defendant is not granted
an opportunity to file his written statement he will not be able to
defend himself. In order to decide the real controversy in the matter, it
is necessary that the defence of defendant No.1 should came on record.
Considering the reasons it would be appropriate to grant an opportunity
to defendant No.1 to file his written statement. No prejudice will cause
to the plaintiff if the defendant is allowed to file written statement. The
defendant will suffer irreperable loss if he is not allowed to file written
statement. Therefore, I proceed to pass the following order:
ORDER
1. The Notice of Motion No.1753 of 2018 is allowed.
2. The order dt.25.02.2016 to proceed without written statement of
defendant is set aside.
3. The defendant no.1 shall file his written statement within 1
month of this order.
Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 29032022 City Civil Court, Gr. MUMBAI
Dictated on : 29032022
Transcribed on : 29032022
checked on : 29032022
Signed on : 30032022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
30.03.2022 at 03.45 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
29.03.2022
Judgment/order signed by P.O. on 30.03.2022
Judgment/order uploaded on 30.03.2022
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