Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.196818 in SU No.357409
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1968 OF 2018
(CNR No.MHCC010064752018)
IN
SUIT NO.3574 OF 2009.
(CNR No.MHCC010037652009)
Mr. Esoofi Shoeb Contractor }...PLAINTIFF.
Versus
The State of Maharashtra and Ors. }...DEFENDANTS.
Smt.Pushpa Thapa, learned advocate for the plaintiff.
Shri.P.G.Lad learned advocate for defendant Nos.2 & 3.
CORAM : HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 12/02/2019)
1. This Notice of Motion is taken out by defendant Nos.2 & 3
seeking relief to set aside order dtd.07/02/2011 passed about transfer
the suit to undefended with further prayer to allow those defendants to
file Written Statements, by condoning the delay. Read affidavit filed in
support and reply filed by the plaintiff. Heard learned Shri.P.G.Lad,
advocate for defendant Nos.2 & 3 and learned Smt.Pushpa Thapa,
advocate for the plaintiff. Perused the entire record.
2. Admittedly, suit is ordered to be proceeded further without
Written Statement of defendant Nos.2 & 3 as per order dtd.7/02/2011.
Admittedly, there is a delay of more than 7 years in filing Written
Statement by defendants Nos.2 & 3. Learned advocate for defendant
Nos.2 & 3 argued that the delay is not intentional and it occurred on
account of inability of the office bearers of defendant Nos.2 & 3 to
provide necessary information to the advocate for defendant Nos.2 & 3
as papers were not received from the Office of Collector till the month
of October, 2017 hence, it is necessary to permit the defendants to file
their Written Statement.
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3. As against this, learned advocate for plaintiff vehemently
opposed the prayers made in the Notice of Motion by submitting that
any just reason is not mentioned in the affidavit filed in the support of
the Notice of Motion to condone the inordinate delay of 7 years. She
argued that even if the reason mentioned in the Para 4 of supporting
the affidavit is accepted, the statements made in the said para show that
papers have been received by defendant Nos.2 & 3 in the month of
October2017 yet, this Notice of Motion is taken out on 28/05/2018 i.e.
practically for more than 6 months thereafter for which, no explanation
is given and hence, it is clear that defendant Nos.2 & 3 have
intentionally not filed Written Statement till date with sole intention of
prolonging the hearing of the suit due to which, the Notice of Motion is
liable to be rejected.
4. As mentioned earlier, there is a delay of more than 7 years
in filing Written Statement by defendant Nos.2 & 3. As is argued by
learned advocate for the plaintiff, defendants have not produced any
documents to show that any correspondence was made on their behalf
with the Office of Collector for receiving copies of any documents
however, it is an admitted fact that defendant Nos.2 & 3 are the
statutory bodies and it can be accepted that certain time must have
consumed for collecting necessary documents by them. It is true that
different criteria cannot be applied for the statutory bodies while
deciding the prayers of like nature but at the same time, it has also to
be kept in mind that the function of statutory bodies is to perform
works to protect the interest of public at large and hence, some more
liberal approach can be adopted while considering the prayers of like
nature made on their behalf. It will have also to be borne in mind that
the time limit for filing written statement is fixed with an intention to
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dispose off the suits expeditiously. It would be just to consider said
aspect also while deciding the present Notice of Motion.
5. Perusal of the Roznama of the proceeding shows that
despite passing order on 07/02/2011 to proceed with the suit without
Written Statement of defendant Nos.2 & 3, plaintiffs had not filed
evidence for a period of more than 2 years and even after filing of the
affidavit of examinationinchief of PW1, said witness was not
attending the court for a considerable period for facing cross
examination. Roznama further shows that matter was kept in the
caption of dismissal order on account of failure of the plaintiffs to keep
PW1 present for facing crossexamination. Roznama further shows that
even costs were also imposed on plaintiff while granting adjournments.
It means that the plaintiff is also not diligent so far as the progress of
the suit is concerned.
6. As mentioned earlier, it would have taken certain time for
defendant Nos.2 & 3 to collect the relevant documents for preparing
Written Statement. It does not appear that the delay on their part is
much intentional. Considering it & the fact that trial of the suit was held
up due to fault of plaintiff also, I am inclined to accept the prayer made
in the Notice of Motion but it will be necessary to see that plaintiff is
compensated to some extent for the delay caused in filing Written
Statement by defendant Nos.2 & 3. In my opinion, saddling of costs of
Rs.10,000/ on defendant Nos.2 & 3 while accepting the prayer made in
this Notice of Motion will protect the interest of justice. For all the
above mentioned reasons, holding that defendant Nos.2 & 3 are entitled
for the relief claimed as above, I pass the following order.
ORDER
Notice of Motion No.1968/18 is allowed in terms of prayer
clause (a) & (b) subject to cost of Rs.10,000/ (Ten Thousand
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Rupees Only).
Defendant Nos.2 & 3 shall pay the cost as mentioned above
and file their written statement on or before next date failing
which, this Notice of Motion shall be deemed to have been
rejected.
Date:12/02/2019. (P. P. RAJVAIDYA)
Dictated on : 12/02/2019. Judge, C.R.No.12,
Transcribed on : 13/02/2019. City Civil Court,
Checked on : 14/02/2019. Gr. Bombay.
Signed on : 14/02/2019.
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5 NM No.196818 in SU No.357409
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
14/02/2019 at 12.30 p.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 12/02/2019.
Order signed by P.O. on 14/02/2019.
Order uploaded on 14/02/2019.
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