Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 2357-19 in S.C.SUIT no.7366-05
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 2357 OF 2019
(CNR no. MHCC01-006486-2019)
IN
SHORT CAUSE SUIT NO. 7366 OF 2005
(CNR no. MHCC01-010726-2005)
HIGH COURT SUIT NO. 3329 OF 2005
Sabahat Ismail Momin
residing at Suhana Apartments, 3rd floor,
Near Kalpana Cinema, L.B.S. Road, Kurla (West),
Mumbai 400 070.
]
]
]
]...
Plaintiff
Versus
1. Sayedali Azad
Residing at 201, Saifee Co-operative Housing
Society Limited, 400B, Hall Road, Halav Pool,
Kurla (West), Mumbai 400 070.
]
]
]
]
2. Mohd. Mustaqeem Khan
having his office at Survey No.80, Indra Nagar
Zopadpatti, New Mandala, Ghatkopar Mankhurd
Link Road, Mumbai 400 043.
]
]
]
]...
Defendants
Appearances:-
Ld. Advocate Mr. Prathamesh Sheth for the Plaintiff.
Ld. Advocate Mr. Bhandari for Defendant no.2.
None for Defendant no.1.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 13th February, 2020.
-- 1 of 4 --
2 NM no. 2357-19 in S.C.SUIT no.7366-05
O R A L O R D E R
1. By instant Notice of Motion, the defendant no.2 has
prayed to set aside ex-parte order against him dated 20.04.2019 and
to take on record his Written Statement by condoning the delay. The
same is objected by the plaintiff on the ground that the defendant
no.2 did not attend Court on 02.03.2019, 25.03.2019 and therefore,
ex-parte order was passed against him on 20.04.2019. It is also
contended by the plaintiff that the delay is more than 120 days from
the service of Writ of Summons and therefore, in view of judgment
of Hon’ble Appex Court in M/s. SCG Contracts India Pvt. Ltd. Vs. K.
S. Chamankar Infrastructure Pvt. Ltd. & Ors., the defendant no. 2
has forfeited his right to file his Written Statement.
2. I have gone through the record, the Writ of Summons
was served to defendant no.2 on 25.02.2019. In view of Order VIII
Rule 1 of The Code of Civil Procedure, 1908 (hereinafter “C.P.C.”),
the defendant should have filed Written Statement within 30 days
i.e. on or before 27.03.2019. The said provision also empowers the
Court to allow the defendant to file Written Statement for next 60
days from expiry of above period of 30 days for sufficient reasons.
In this case, 90 days period from service of Writ of Summons
expired on 26.05.2019 i.e. during summer vacation. In the affidavit
in support of Notice of Motion, the defendant no.2 has contended
that he had gone to his native place in Uttar Pradesh to attend
funeral of his mother-in-law, he challenged his impleadment as party
by filing Writ Petition 2253 of 2019 and the same was disposed off
on 08.04.2019. Taking into account all above aspects the defendant
-- 2 of 4 --
3 NM no. 2357-19 in S.C.SUIT no.7366-05
no.2 has given sufficient reasons for not filing the Written Statement
before 26.05.2019. Moreover, if the period of 21 days of summer
vacation is excluded the Written Statement is filed within 90 days
from the date of service. Therefore, following order :
ORDER
1. Notice of Motion No. 2357 of 2019 is allowed and made
absolute in terms of prayer clauses (a) and (b).
2. The defendant no.2 shall file Written Statement on or before
next date.
3. Costs in cause.
sd/-
(C. V. Marathe)
Judge,
Date : 13.02.2020. City Civil Court, Gr. Mumbai.
Dictated on : 13.02.2020.
Transcribed on : 13.02.2020.
Signed by HHJ on : 14.02.2020
-- 3 of 4 --
4 NM no. 2357-19 in S.C.SUIT no.7366-05
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 15.02.2020 at 10.57 a.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
13/02/2020
JUDGMENT/ORDER signed by
P.O. on
14/02/2020
JUDGMENT/ORDER uploaded
on
15/02/2020
-- 4 of 4 --