Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2004/2018 L.C. Suit No.1737/17
CNR No. MHCC010065632018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2004 of 2018
IN
L.C. SUIT NO. 1737 OF 2017
1. Shri Harishychandra Shankar )
Panwalkar and another Age : 50 years, )
Occupation Service, Indian Inhabitant, )
residing at Shri Sai Balaji Darshan CHS )
Ltd. CWing, room No.2, Near Shiv Sena )
Shakha, Sagarli Naka, Dombivai (East) )
District Thane. )
2. Mrs. Asmita (Gangubai)Anant Ketalkar)
Age :48 years, Occupation : Housewife )
Indian, Inhabitant, residing at Sasrita )
Garden, BWing, Ropom No.1, Shashtri )
Nagar, Kasarwadi, Pune, )…Plaintiffs
Vs.
1. Smt. Anuradha Prabhakar Panwalkar )
Age : 65 yrs. Occupation : Housewife )
2. Mr. Suhas Prabhakar Panwalkar )
Age : 40 yrs. Occupation : Service )
3. Mr. Sandeep Prabhakar Panwalkar )
Age : 37 yrs. Occupation : Service )
4. Mr. Prashant Prabhakar Panwalkar )
Age : 35 yrs. Occupation : Service )
All above are Indian, Inhabitants )
residing at 3E/401/04, P.M.G.P., )
Colony, Gavanpada, Mulund (East), )
Mumbai 400 081. )...Defendants
APPEARANCE:
Ld. Adv. Mr. A.K. Karandikar for the plaintiff.
Ld. Adv. Mr. D.S. Padwal for the defendant No.1 to 4
Ld. Adv. Mr. Vyavhare for the MCGM/defendant No.5 and 6.
-- 1 of 5 --
NM 2004/2018 .. 2 .. L.C. Suit No.1737/2017
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 10th JANUARY, 2020.
O R D E R
. This Notice of Motion is filed by defendant Nos.1 to 4 for
condonation of delay in filing the written statement.
2. In the affidavit filed in support of notice of motion, it is
averred by defendants that the writ of summons was served upon the
defendants on 30.08.2017. Defendant No.3 has approached to the other
family members. After showing the suit papers, the defendants and
other members have decided to find out amicable settlement between
the parties and because of that they could not file the written statement
within limitation period. The written statement of all defendants was
affirmed on 15.11.2017 as it was the date informed to all the
defendants. Instead of 15.11.2017, the date was 15.12.2017. Because of
the misunderstanding of the court date, the written statement could not
be filed. Thereafter due to old age sickness of the defendant No.1
though the written statement was affirmed they could not submit the
same before this court. Sufficient cause and bonafide reason is made
out. Therefore they prayed for making their notice of motion absolute.
3. Plaintiffs have objected the notice of motion by filing their
reply. They have denied all the averments in notice of motion. They
contended that notice of motion taken out by defendants to condone
the delay in filing written statement is baseless, vague and without any
sufficient cause made out by the defendants. Defendants miserably
failed to make out an exceptional reason which were beyond their
control. There is nothing placed on record that the Defendant No.3 is
-- 2 of 5 --
NM 2004/2018 .. 3 .. L.C. Suit No.1737/2017
given an authority to file this notice of motion on behalf of the other
defendants nor any power of attorney is produced on record. The
Defendants were not diligent in filing the written statement. If the
defendants came to know about the wrong date recorded by them and
if at that time, the written statement was ready, as they were
represented through their advocate, the above matter could have been
produced before the court by moving the precipe and the defendants
could have filed the written statement. The delay in filing written
statement is without any justifiable explanation. The reasons given to
condone the delay are vague, baseless and unsubstantiated. Therefore,
they have prayed for dismissal of notice of motion with heavy costs..
4. I have heard both the Ld. Advocates. Perused the file.
Defendants have received the writ of present suit summons on
30.08.2017. The grounds made out in Notice of Motion are attempt of
amicable settlement, misunderstanding of court date and old age
sickness of defendant No.1 which resulted in delay.
5. There is delay of 67 days in filing written statement by the
defendants. The averments in application are affirmed on oath. There is
nothing on record to disbelieve them. Therefore, averments in notice of
motion needs to be believed on factum of reasons of delay to file
beyond 30 days.
6. Procedural laws are merely tools to do substantial justice. It
cannot be lost sight of the fact that if defendants are denied opportunity
to file their written statement then there would be no meaningful
contest in the present suit. In the absence of their written statement
they would be handicapped in contesting this suit in effective manner.
Provision of Order VIII, Rule 1 of CPC, 1908 being directory in nature, I
-- 3 of 5 --
NM 2004/2018 .. 4 .. L.C. Suit No.1737/2017
am inclined to grant present notice of motion on costs. In result, I
proceed with following order.
ORDER
1. Notice of Motion No.2004/2018 is hereby allowed subject to
payment of costs of Rs.1200/(Rs. One Thousand Two Hundred
only) to be paid by defendants to plaintiffs till next date.
2. On deposition of costs, delay caused in filing written statement is
condoned and written statement of defendants be accepted on
record.
3. The Notice of Motion No. 2004/2018 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.06)
Date :10.01.2020 City Civil Court, Gr. Mumbai
Dictated on :10.01.2020.
Transcribed on :13.01.2020.
Signed on :14.01.2020.
-- 4 of 5 --
NM 2004/2018 .. 5 .. L.C. Suit No.1737/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 14.01.2020, 02.50 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
10.01.2020
JUDGMENT/ORDER signed by
P.O. on
14.01.2020
JUDGMENT/ORDER uploaded on 14.01.2020
-- 5 of 5 --