Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2119/2019 SUM.SUIT 55/2019 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2119 OF 2019
IN
SUMMARY SUIT NO. 55 of 2019
(CNR.NO.MHCC010058802019)
Shrey Kantilal Jain ...Plaintiff
Versus
Raju Sevakram ..Defendant
Appearances:
Advocate Mr.Mahadik for the Plaintiff.
Advocate Mr.Dhiraj Singh for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 08TH JANUARY 2020
J U D G M E N T
1. By this Notice of Motion the defendant requested to set aside ex
parte order dtd.05.03.2019 passed against him.
2. The plaintiff resisted the Notice of Motion.
3. The Ld Advocate on behalf of the defendant argued that
summons was served on the defendant at Ahmedabad, Gujrat, after
service of summons the defendant appeared in person and prayed for
time to engage advocate. Time was granted to the defendant. However,
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NM 2119/2019 SUM.SUIT 55/2019 2
the defendant being illiterate did not understand the period of
limitation to cause appearance within 10 days. Therefore, he could not
appear to advocate within 10 days and subsequently Exparte order
dtd.05.03.2019 was passed. Ld Advocate requested to set aside the said
order.
4. On the other hand, Ld Advocate on behalf of the plaintiff argued
that no ground is made out to allow the application. There is no
separate application or there is no separate request for condonation of
delay. Therefore, she requested to reject the Notice of Motion.
5. Admittedly, summons was served on the defendant on
01.02.2019. The exparte order was passed on 05.03.2019. This is a
summary suit wherein after service of summons for appearance, the
defendant has to merely put his appearance within 10 days from the
date of service of summons. Thus, it was mandatory for the defendant
to appear on or before 11.02.2019. It may be noted here that the
Roznama dtd.15.02.2019 shows that the matter was taken on board by
preceipe. The defendant was present. He also filed his pursis for
appearance. Thus, the defendant, in fact, appeared on 15.02.2019 itself
and his appearance was also recorded on same date. As the appearance
of the defendant was recorded, the matter ought to have been posted
for steps on behalf of the plaintiff for filing summons for judgment and
the exparte order dtd.05.03.2019 ought not to have been passed
because the defendant was not expected to appear rather by law
required to appear on 05.03.2019. In any case the defendant had put
his appearance on 15.02.2019 which was accepted. No doubt, the delay
caused to appear was of only 5 days. However, considering shortness of
period the delay can be condoned. True that there is no request
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NM 2119/2019 SUM.SUIT 55/2019 3
separately made to condone the delay, but the affidavit of notice of
motion explains the reasons as to why the delay was caused or why the
defendant could not appear within 10 days. The defendant also
requested for setting aside exparte decree. Therefore, even if specific
separate request for condonation of delay is not made, there is implied
request to condone the delay as the same is implicit in the request of
setting aside exparte order and the explanation for delay. The
defendant being resident of Ahmedabad Gujrat, it may have taken
additional time for him to make arrangement and to appear in the
matter. Thus, the delay of 5 days is satisfactorily explained. Further,
considering shortness of the delay it is just and proper to condone the
same, set aside exparte order and proceed with the matter, of course,
subject to cost of Rs.2000/ to be paid to the plaintiff by the defendant.
In the result, the Notice of Motion deserves to allowed. Hence, order as
follows is passed:
ORDER
1. The Notice of Motion No.2119 of 2019 is allowed as under.
2. Exparte order dtd.05.03.2019 passed against the defendant is set
aside and the defendant's appearance be recorded subject to costs of
Rs.2000/(Rupees Two Thousand only) to be paid to the defendant.
3. The Notice of Motion No.2119 of 2019 is disposed accordingly.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 08/01/2020 City Civil Court,Gr. Mumbai
Dictated on : 08/01/2020
Transcribed on : 09/01/2020
Signed on : 09/01/2020
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NM 2119/2019 SUM.SUIT 55/2019 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10/01/2020 at 1.00p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 08/01/2020
Judgment/Order signed by P.O. on 09/01/2020
Judgment/Order uploaded on 10/01/2020
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