Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1771/2018 in Suit No.4521/2011
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1771/2018
CNR No. : MHCC010057882018
IN
SHORT CAUSE SUIT NO. 4521/2011
Dhanlaxmi CHS Ltd. ...Plaintiff
V/s.
Deju K. Poojari & Ors. ...Defendants
Adv. Thakkar for plaintiff.
Adv. Andrews for defendants.
CORAM : HHJ Shri. G. R. Agrawal
C.R. No.3
DATED : 20.04.2019
ORDER
(Dictated in open Court)
By this notice of motion, the defendant no.4 is praying to recall
the order dated 12.6.2017 and for permission to file written statement
after condoning the delay. The plaintiff has filed reply to the notice of
motion and defendant no.4 has filed rejoinder.
2. Heard Ld. Counsel for the parties and perused record.
3. It is urged on behalf of the defendant no.4 that due to pendency
of notice of motion, he was given to understand by his Advocate that
written statement would be filed only after notice of motions are
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decided, since he had taken objection to the jurisdiction of this Court.
Even after the said objection was decided, he was not advised by his
lawyer to file written statement. It is urged that the subject matter is
connected to the flat of defendant no.4 and his valuable rights will be
affected if notice of motion is not allowed.
4. The Ld. Counsel for plaintiff has urged that defendant no.4 has
failed to make out any case for condoning inordinate delay of about 6
years in filing written statement. He submitted the length of delay is not
relevant but explanation for delay is essential. He urged that no
explanation is given in the affidavit and therefore the notice of motion
may be dismissed.
5. A perusal of the record shows that this suit was originally filed
before Hon’ble High Court and was transferred to this Court in the year
2012. On 22.7.2013, the Advocate for defendant no.4 filed notice of
motion no.1574/2012 praying to frame preliminary issue on the point
of jurisdiction. On 11.8.2014 preliminary issue was framed. Thereafter,
the matter was pending for hearing on preliminary issue which was
finally decided on 15.3.2016. It was held that this Court has jurisdiction
to try and decide the suit and notice of motion no.1574/2012 was
disposed of. On 12.6.2017, order was passed to proceed against
defendant no.4 without written statement. Thereafter, the plaintiff filed
affidavit evidence on 18.1.2018 and notice of motion no.3094/2011
was tagged with suit by order dated 22.3.2018. On 3.4.2018 and
25.4.2018, defendants no. 1, 2 and 4 filed notice of motion
no.1771/2018 and 1772/2018.
6. In view of the aforesaid position of the matter in the roznama, I
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find that the period from 2012 to 2016 was consumed in deciding the
preliminary issue and notice of motion no.3094/2011. Therefore, the
statement in the affidavit of defendant no.4 that during the pendency of
notice of motion he was given to understand that the written statement
can be filed only after notice of motions are decided, cannot be
disbelieved. It appears that defendant no.4 and his Advocate realized
about their mistake after the order dated 12.6.2017 and filing of
evidence by the plaintiff.
7. Ld. Counsel for the plaintiff has placed reliance on the case of Dr.
Milind V/s. Prashant Mane 2019 (1) 645. In that case, the Hon’ble
Bombay High Court has set aside the order of Trial Court whereby the
application to file written statement was allowed by imposing cost of
Rs.8,000/. However, one fact of said case is important and i.e. in that
case the evidence of plaintiff and his witnesses was over. In the instant
case, the plaintiff has filed evidence but the matter is at the stage of
filing say on documents. The fact situation of the said ruling is different
from the present case.
8. In the other ruling cited by the Ld. Counsel for plaintiff i.e.
Atcoma Technologies V/s. Y.A. Chunawala, the delay of filing written
statement was of 15 years and 54 days, as mentioned in paragraph no.2
of the Judgment. The facts of the said case are also different from
present case.
9. The subject matter of the suit is a flat and valuable rights of both
parties are involved. The defendant no.4 may suffer serious prejudice if
he is not given one opportunity to contest the suit on merits. In the
facts and circumstances and considering the entire record, I find that
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the defendant no.4 has made out sufficient cause for condoning delay
and granting permission to file written statement. However, defendant
no.4 is liable to compensate the plaintiff by paying cost. Hence, I pass
following order –
ORDER
1. Notice of motion no. 1771/2018 is allowed subject to
payment of cost of Rs. 10,000/ to plaintiff within two
weeks from today, failing which, the notice of motion
shall stand dismissed.
2. If cost is paid, the written statement of defendant no.4
be taken on record.
(G.R. Agrawal)
Judge
City Civil Court,
Gr. Bombay.
Date : 20.4.2019
Dictated on : 20.4.2019
Typed on : 24.4.2019
Signed on : 24.4.2019
CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
24.4.2019 at 5.50 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
20.4.2019
JUDGMENT/ORDER signed by 24.4.2019
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P.O. on
JUDGMENT/ORDER uploaded
on
24.4.2019
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