Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2156/19 in S.C.Suit No. 2442/17. 1 Order
MHCC010060012019
Presented on : 18-06-2019
Registered on : 18-06-2019
Decided on : 30-10-2023
Duration : 4 years, 4 months, 12 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2156 OF 2019
IN
S. C. SUIT NO. 2442 OF 2017
John Peter Fernandes )...Plaintiff
Versus
Flavia Fernandes and others )...Defendants
Shri Amol K. Tembe, Advocate for the defendant nos.1 to 4.
Shri Denzil D’Mello, Advocate for the plaintiff.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 30th OCTOBER, 2023.
ORDER
1. The defendant no.4 has taken out the notice of motion for
condonation of delay of 14 days in taking out the notice of motion. The
defendant no.4 also prayed that the order dated 15/02/2019 directing
that the suit should proceed against the defendant no.4 without written
statement be set aside and the written statement dated 18/04/2018 of
the defendant no.4 be taken on record.
2. It is alleged by the defendant no.4 that the defendant nos.1
to 3 travelled to Mumbai on 17/01/2018 and immediately consulted
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N/m No. 2156/19 in S.C.Suit No. 2442/17. 2 Order
their advocate and requested him to take necessary steps in the matter.
While the true copy of the plaint was received by them in Australia
around 02/01/2018, they were able to share the same with the
advocate on 18/01/2018 when the defendant no.3 met him in Mumbai.
After the draft of the written statement was finalized, the same was sent
to defendant no.4 for signing. But because of his work commitments it
was neither possible for defendant no.4 to visit Indian Consulate in
Australia nor was it possible for him to visit Mumbai for the purpose of
affirming and signing the written statement. After arriving in Mumbai
on 18/04/2018 he proceeded to sign his written statement. There was
no deliberate delay in signing the written statement.
3. Since there was delay in filing the written statement, He
took out Notice of Motion No. 1750/2018 for seeking condonation of
delay of 77 days in filing the written statement and to take written
statement on record. By order dated 15/11/2018 the Notice of Motion
No. 1750/2018 was made absolute and delay of 77 days was condoned
subject to conditions that written statement be filed on 08/12/2018 and
cost of Rs.1,000/- be paid to DLSA within a period of two weeks. The
clerk of the advocate committed an error by not recording the next date
of hearing of the matter in the diary maintained in the office. As a result
of this the written statement remained to be filed and cost remained to
be paid. Therefore on 15/02/2019 order was passed that the suit
should proceed against defendant no.4 without his written statement.
There is no deliberate delay in taking out present notice of motion. If
the order dated 15/02/2019 is not set aside then it would deprive
defendant no.4 of the chance of defending the suit which would cause
irreparable loss and prejudice to him. Hence, defendant no.4 prayed for
condonation of delay in filing written statement on record.
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N/m No. 2156/19 in S.C.Suit No. 2442/17. 3 Order
4. The plaintiff opposed the notice of motion by filing reply. It
is alleged by the plaintiff that order dated 15/11/2018 is not complied
by the defendant no.4. Defendant no.4 cannot taken for granted the
orders of this court and waste the time of the court by filing a fresh
notice of motion for the same reliefs. Instead of admitting negligence on
their part the defendant no.4 and his advocate are seeking to find a
scapegoat in the clerk and in this ground itself the present notice of
motion ought to be dismissed with cost.
5. Perused notice of motion and affidavit in reply filed by the
plaintiff. Heard advocate for the defendant no.4. Advocate for the
plaintiff was absent at the time of hearing of the notice of motion.
Sufficient chance is given to the plaintiff to argue notice of motion, but
all goes in vain. Thus, lastly heard advocate for defendant no.4 but at
the same time the points raised by the plaintiff in his reply are
considered while deciding the notice of motion.
6. Having heard advocate for the defendant no.4 and on
going through documents filed on record, it reveals that there is a delay
of 14 days in filing written statement on record. The delay can be
condoned if it is brought on record there is sufficient cause for not filing
written statement within time limit. If the sufficient cause is shown and
if it is found that delay is not intentional, deliberate and so as to
frustrate the claim of the plaintiff, then delay can be condoned. In case
at hand, the contention of the defendant no.4 that the clerk of the
advocate committed an error by not recording the next date of hearing
of the matter in the diary maintained in the office and as a result of this
the written statement remained to be filed and cost remained to be
paid.
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N/m No. 2156/19 in S.C.Suit No. 2442/17. 4 Order
7. In the case of Bharat Kalra V/s. Raj Kishan Chabra (Civil
Appeal No. 3788/2022) the Hon’ble Supreme Court held that -
“the time limit for filing of the written statement under Order
VIII Rule 1 of CPC is not mandatory.”
The Hon’ble Apex Court further held that -
“we find that the delay in filing of the written statement
could very well be compensated with costs but denying the
benefit of filing of the written statement is unreasonable.”
8. There is 14 days delay. The delay is not intentional.
Therefore, if delay is not condoned, the defendant no.4 will lose right to
contest the suit or to protect his legal rights forever. Therefore, in my
opinion, delay needs to be condoned. Hence, considering this, I pass
following order :
- ORDER -
1. Prayer clause (a), (b) and (c) of Notice of Motion No. 2156/2019
is made absolute subject to cost of Rs.1,000/-.
2. The defendant no.4 is directed to pay cost to the plaintiff or
deposit in this court within six weeks from the date of this order, after
payment of cost, written statement be read and recorded.
3. N/m No. 2156/2019 is disposed off accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 30/10/2023. Mumbai.
1. Dictated online on : 30/10/2023.
2. Placed for correction on : 31/10/2023.
3. Checked on : 01/11/2023.
4. Correction carried on : 01/11/2023.
5. Signed on : 01/11/2023.
6. Delivered to Certified :
Copy Section on
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N/m No. 2156/19 in S.C.Suit No. 2442/17. 5 Order
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/11/2023. 5.46 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 30/10/2023.
Judgment/Order signed by P.O. on 01/11/2023.
Judgment/Order uploaded on 01/11/2023.
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