Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.2256 OF 2019
IN
S.C.SUIT NO.6333 OF 2004
CIDCO ....Plaintiff
V/s
Shri.Trymbak N.Dudhate & Anr. ....Defendants
APPEARANCE:
Ld.Adocate Jagtap for plaintiff.
Ld.Advocate Sharif Khan for defendant no.1.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A.BHOSALE
(COURT ROOM NO. 32)
DATE : 16th September, 2019
ORDER
1. Perused contention in the Notice of Motion @ affidavit.
2. Heard Ld.Counsel for both the sides.
3. It is submitted by the defendant no.1, he had not filed written
statement in spite of writ of summons dated 21/02/2004 issued by
Hon'ble High Court served to him by post. It is further submitted that
he is unable to raise funds to defend suit by appointing advocate
practicing in High Court. Therefore, he approached to legal aid
authority to appoint advocate. It is further submitted that as per his
request authority had appointed various advocate time to time but they
are not conversant with the practice and procedure of Court which has
resulted in delay of 3967 days for filing written statement.
It is further submitted that he had not fault to file written statement he
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regularly attended the Court every date. However, concerned advocate
appointed by legal aid authority was absent and failed to file written
statement within a time. Lastly, it is submitted that due to paucity of
fund and unavailability of the advocate and lack of knowledge he failed
to file written statement within a time and delay is caused for the
period of 3967 days in filing written statement may kindly be
condoned.
4. Plaintiff has opposed Notice of Motion filed detail reply and
denied the contention made in the Notice of Motion in toto. It is
contended by the plaintiff that 3967 days delay is not properly
explained by the defendant in the entire Notice of Motion. It is further
contended that defendant had regularly attending the Court but doing
nothing. Several time Court has explained him for consequences for
non filing of written statement on record. It is further contended that
the present suit is pending in the Court since 2004 and several time
legal aid authority provide advocates to the defendant. However, they
are not taking steps to file defence of defendant on record. It is further
contended that merely leading advocates for non filing written
statement is not sufficient the defendant no.1 properly served by the
plaintiff. It is clear cut mandate of law to file written statement within
stipulated time. However, defendant no.1 failed to obey the mandate of
law and without satisfactory reason filed application. However,
application is without in merit. Lastly, it is submitted that Notice of
Motion may kindly be rejected with imposing cost.
5. After hearing both the advocates, I drew my attention towards
record. The present suit filed by plaintiff against defendant in the year
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2004. As per the record writ of summons is duly executed to the
defendant no.1 in the year 2004. This fact is not disputed by the
defendant. Record also shows that as per the summons defendant is
appeared before the Court on each and every date. It is also not
disputed that he make applications before the legal aid authority and
every time legal aid authority appointing advocates to defend the case
of defendant no.1. It is to be noted here the defendant no.1 is
attending the matter on each and every date. However, failed to file
written statement to defend suit. As per O.VIII R.1 of The Code of Civil
Procedure it was obligatory on the part of defendant to file written
statement within 30 days and if he failed to file written statement
within 30 days then as per the proviso time be extended till 90 days for
filing written statement. If the defendant shows special reason for non
filing of written statement within a stipulated period as per O.VIII R.1 of
The Code of Civil Procedure. In the present suit defendant is appeared
before the Court is a correct fact, legal services authority appointed
advocate to defend his case on several time but it is not a case of
defendant that he had provide all information to the advocate but
concerned advocate failed to file his defence before the Court by way of
written statement within time. Mere saying that advocate had failed to
file written statement within stipulated time is not sufficient. If the
defendant had given information to the concern advocate and if the
advocate failed to file written statement. Then it is proper to consider
the case of defendant but if defendant failed to provide information to
the advocate then advocate cannot do anything for filing written
statement. Therefore, the point raise by defendant is at all not
satisfactory. Furthermore, there is no any special and satisfactory
explanation offer by defendant to condone the delay of 3967 days.
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After gone through the entire record I found that there is no proper and
satisfactory reason to condone the delay. Hence, I proceed to pass
following order.
ORDER
1. Notice of Motion No.2256 of 2019 is dismissed with cost.
2. Notice of Motion No.2256 of 2019 is disposed of in the above said
terms.
Date: 16/09/2019 (Milind A.Bhosale)
Adhoc Judge,
City Civil & Sessions Court,
Gr.Bombay.
Dictated on : 16/09/2019
Typed on : 16/09/2019
HHJ signed on : 21/09/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
21.09.2019 at 05.20 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
16.09.2019
JUDGMENT/ORDER signed by P.O. on 21.09.2019
JUDGMENT/ORDER uploaded on 21.09.2019
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