Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.2259/2019 ..1.. In S.C. Suit No.839/2016
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 2259 OF 2019
IN
S.C. SUIT NO. 839 OF 2016
CNR NO :- MHCC01-006202-2019
Vidyavihar Jaiprakash Nagar Co-op.
Housing Society Ltd.,
Having its office At : CTS No. 463 (part),
464 (part), 468 (part) of Village Kirol,
Jayprakash Nagar, 7th Road,
Vidyavihar (East), Mumbai - 400 077. ...Plaintiff
Versus
Irfan Mohammad Javed Shaikh,
Age - 36 Years,
Having address At : Society Welfare Centre,
Unit No. C-107, Building/Wing No. C-1,
(Earlier Known as Building/Wing C),
Vidyavihar Jaiprakash Nagar Co. Op. Housing
Society Ltd., 7th Road, Jayprakash Nagar,
Vidyavihar (East), Mumbai - 400 077. ...Defendant
Appearance :-
Mr. Dahibawkar, Advocate for the Plaintiff.
Mr. M. S. Singh, Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 25TH FEBRUARY, 2021.
ORAL ORDER
Perused. Heard.
2. The defendant has prayed to condone the delay in filing
written statement and to take written statement on record. According to
him, in view of objection to jurisdiction an issue as to jurisdiction was
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Notice of Motion No.2259/2019 ..2.. In S.C. Suit No.839/2016
framed. Ultimately, the Court decided to delete said issue in view of
deletion of Section 9 of CPC. Therefore, despite service of write of
summons the defendant did not file written statement, since the
preliminary issue was framed and pending adjudication. Soon after
passing the order to delete said issue, the notice of motion is taken out
along with the written statement. The delay is neither deliberate nor
intentional.
3. Notice of motion is opposed by the plaintiff on the ground
that, no exceptional situation or circumstance is made out by the
defendant. No sufficient cause is also shown. There is gross negligence
on the part of the defendant in not filing written statement within
stipulated time. The conduct of defendant is deliberate. The notice of
motion to frame preliminary issue was filed after the expiry of its period
for filing written statement. The defendant was not precluded from
filing the written statement despite pendency of framing of preliminary
issues and though it was pending adjudication.
4. What appears from the record is that, the defendant is
served by writ of summons on 22.04.2016. The defendant had
appeared in the suit on 03.05.2016 and time was sought to file reply
and written statement. Later, on next date also time was sought and
time was granted. On very next date i.e. 24.08.2016 the defendant had
filed draft notice of motion, which was later on registered as Notice of
Motion No. 3320/2016. It was made absolute on 16.11.2017 and the
preliminary issue was framed. Later, on 27.07.2018 my Predecessor has
ordered to consider the preliminary issue while framing other issues
since Section 9A of CPC was deleted. Thereafter, on very next date the
defendant has taken out present notice of motion.
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Notice of Motion No.2259/2019 ..3.. In S.C. Suit No.839/2016
5. Considering the chain of circumstances, the proceedings
nowhere indicate that, defendant had a deliberate intention not to file
written statement within time. On the contrary the objection to
jurisdiction was raised at the earliest and the issues was framed and
was pending adjudication. Considering these circumstances, it is logical
for defendant to wait till the decision on preliminary issue and not file
written statement till the time such issue is answered, as, if the issue
would have been answered in favour of the defendant no cause would
remain for him to file the written statement. In view of this, I hold that
the circumstances, in this case, warrant to allow the notice of motion.
Hence, following order :-
ORDER
1. Notice of Motion No. 2259/2019 is made absolute
in terms of prayer Clause (a) and (b).
2. The delay in filing written statement is condoned.
3. The written statement, if any, filed by the
defendant be taken on record and be marked as
exhibit.
4. Costs in cause.
(AJIT N. MARE)
Judge,
Date : 25.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 25.02.2021
Transcribed on : 26.02.2021
HHJ Signed on : 01.03.2021
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Notice of Motion No.2259/2019 ..4.. In S.C. Suit No.839/2016
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
01.03.2021 4.55 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 25.02.2021
Order signed by P. O. on 01.03.2021
Order uploaded on 01.03.2021
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