Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2185/2019 in Suit 1510/2015. 1
MHCC010053892015
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2185 OF 2019
IN
S.C. SUIT NO. 1510 OF 2015
1. Mrs. Sugandha Tukaram Kamble
2. Mrs. Vaishali Hemant Lokhande
3. Mrs. Purnima Allwyn Dmello
4. Mrs. Ashit Tukaram Kamble
5. Mrs. Archan Milind Darole …. Plaintiffs
V/s.
1. Mrs. J. N. Joshi
2. Mr. Samit Tukaram Kamble ….. Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.29).
DATE : 30/03/2024.
Appearance:-
Ld. Advocate Shri. Kantawala for the plaintiff.
Ld. Advocate Shri. Dalal for the defendant No.1.
-- 1 of 6 --
NM 2185/2019 in Suit 1510/2015. 2
ORDER
1. Defendant No.1 has taken out this Notice of motion for
setting aside no written statement order dated 04.05.2016, to condone
delay of 3 years and 8 months caused to file written statement and
allow her to file written statement on record. Plaintiff filed reply
affidavit and contested the notice of motion.
2. I have heard learned advocate Isha Bafana for defendant
No.1. In-spite giving opportunities, learned advocate for plaintiff failed
to remain present and to argue on notice of motion. Hence, I have
decided disposed off notice of motion on merit by perusing reply
affidavit of plaintiff.
3. Present suit is filed for declaration that, the agreement of
sale dated 27.06.1996 between defendant No.1 and 2 is illegal, bad in
law and null and void and not binding upon plaintiff. Relief of
declaration of cancellation of said agreement is also sought. So also
reliefs of possession of the suit flat and perpetual injunction are also
sought against defendants.
4. As per record, writ of suit summons was served on
defendant No.1 on 21.07.2015. Defendant No.1 appeared through her
advocate on 27.07.2015 and sought time to file written statement. As
defendant No.1 failed to file written statement, hence “No WS” came to
be passed on 04.05.2016. After 3 years and 8 months, defendant No.1
filed present notice of motion praying aforesaid reliefs mainly on the
grounds of illness of herself and her husband and her frequent visit at
London to took after health of husband.
-- 2 of 6 --
NM 2185/2019 in Suit 1510/2015. 3
5. I have considered submissions of advocate for defendant
No.1 and perused copies of documents annexed to affidavit of
defendant No.1 and reply affidavit of plaintiff. Defendant No.1 cited the
reason that, since last several years prior to filing of suit, she was
suffering from various age related disease and met with severe car
accident in London in 2009. She undergone multiple hospitalizations,
Surgeries and extensive medical treatment. Her husband is also patient
of low blood pressure, high cholesterol and hypothyroidism and
required continuous medical treatment. Because of which she was
required to frequently visit and stay with husband at London. Defendant
no. 1 relied on copies of letters issued by medical practitioner at London
which are of the period immediately after passing “No WS” order. These
documents supports the ground of illness of husband of defendant No.1
which appears to be satisfactory for not filing written statement and
condoning delay. So also age of defendant no. 1 is 76 years.
6. It appears that, the agreement for sale in question is of the
year 1996 and challenged by filing suit in 2015. Defendant No.1 taken
stand in para 8 of affidavit that she required considerable time to search
the documents relating to suit flat and the said agreement. This reason
also found satisfactory for not filing written statement and condoning
delay in view of the fact that, agreement is of the year 1996.
7. In the reply affidavit, plaintiff has contended that the cause
for not filing written statement within time and to condone delay given
by defendant No.1 are not satisfactory. All the documents filed by
defendant No.1 are beyond the period and after passing no written
statement order. No justifiable reason is made out for not filing written
-- 3 of 6 --
NM 2185/2019 in Suit 1510/2015. 4
statement within time.
8. I have considered these contention of plaintiff. As noted
above, illness or disease suffered by plaintiff and her husband and her
requirement to go at London to look the health of husband appears to
the satisfactory reasons. Though the documents filed by defendant No.1
are of the period post passing no written statement order, but said
documents are supporting to the cause given for condoning delay. The
reason that the time required to search the documents relating to the
agreement of the year 1996 also found satisfactory for not filing written
statement within the given time or till passing no written statement
order on 04.05.2016.
9. In view of aforesaid discussion, I find that the defendant
No.1 has made out sufficient cause for setting aside no written
statement order and to condone delay of 3 years and 8 months. It is
true that, the notice of motion is filed after the plaintiff adduced
evidence on affidavit and the matter was posed for cross examination of
plaintiff. However considering the relief of possession of immovable
property from defendant No.1 and 2, I find this genuine case to allow
defendant No.1 to contest the suit on merit. For delaying the matter for
3 years by filing notice of motion and further period of 4 to 5 years for
deciding the notice of motion by defendant No.1, costs can be imposed
on defendant No.1 to compensate the plaintiff. For these reasons I hold
that notice of motion deserves to be allowed. In the result, I passed
following order.-
- ORDER -
1. Notice of Motion No.2185 of 2019 is allowed in terms of prayer
clause (a) and (b).
-- 4 of 6 --
NM 2185/2019 in Suit 1510/2015. 5
2. No written statement order dated 04.05.2016 is hereby set aside
and delay of 3 years, 8 months and 22 days caused to defendant No.1 to
file written statement is hereby condoned subject to cost of Rs. 5000/-
payable to plaintiff.
3. After payment of cost or deposit in the court within 15 days,
written statement already filed with draft notice of motion be taken on
record by marking exhibit to it.
4. Notice of Motion No.2185 of 2019 disposed off accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date : 30.03.2024 Gr. Bombay.
-- 5 of 6 --
NM 2185/2019 in Suit 1510/2015. 6
1. Dictated on : 30.03.2024
2. Transcribed on : 30.03.2024
3. Checked and Signed on : 30.03.2024
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF TYPIST
30.03.2024 5.45 p.m. Suvarna S. Hile
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.29).
Date of Pronouncement of Judgment/Order 30.03.2024
Judgment/Order signed by P.O. on 30.03.2024
Judgment/Order uploaded on 30.03.2024
-- 6 of 6 --