Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2389 OF 2019
IN
SUIT NO. 1565 OF 2016
Smt. Snehprabha Harishchandra ]
Shirkar (Nee: Vasanti Liladhar ]
Khedekar. ].. Plaintiff.
V/s.
1. Mumbai Building Repairs and ]
Reconstruction Board and others. ]..Defendants.
Advocate Ms. Ankita Manjrekar for the plaintiff.
Advocate Ms. Mangal Kadam for defendant No.1/MHADA.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 4th APRIL, 2022
ORDER
The Notice of Motion is taken out by defendant No.2 for
setting aside “No Written Statement” order passed against her.
2. It is the case of defendant No.2 that the plaint was served
on her on 28.02.2018, but writ of summons was not annexed to it. She
is suffering from diabetic and hyper tension. She cannot read English.
Hence, she called her Power of Attorney holder to show the documents
to her advocate and came to know about the suit. The envelope was
left unnoticed after received by her for a certain period. Defendant
-- 1 of 4 --
2
No.2 was suffering from viral fever and Jaundice and she was bed
ridden for few days. Therefore, she could not consult with her
advocate. She has produced medical certificate and has prayed for
setting aside “No Written Statement” order passed against her.
3. The plaintiff has filed reply and objected Notice of Motion
on the ground that the exact quantum of delay is not mentioned by
defendant No.2. Defendant Nos.2, 3, 4 and 7 are represented by the
same advocate. Therefore, it is difficult to hold that the defendant No.2
was not aware about the suit. The Vakalatnama was filed on behalf of
defendant No.2, but till 2019, no case was made out by the defendant
No.2 about non-receipt of Writ of Summons. As per Rule 57 of Bombay
City Civil Court Rules 1948, service of writ of summons upon her
advocate is sufficient. “No Written Statement’ order was passed on
07.05.2019 in the presence of learned advocate for defendant No.2.
Hence, the plaintiff has prayed that Notice of Motion deserves to be
dismissed.
4. I have heard both the learned advocates at length.
5. “No Written Statement” order came to be passed on
07.01.2019. The present Notice of Motion was taken out on
11.06.2019 i.e. almost after five months of passing of the order. The
defendant No.2 has annexed medical certificate to the Notice of Motion
which states that she was advised rest from 10.06.2019 to 16.06.2019.
However, this medical certificate is not of much help to the defendant
No.2 as the period of delay is prior to the period of medical certificate.
6. Defendant No.2 has stated that she is old aged lady and
does not understand English. Therefore, she called Power of Attorney
-- 2 of 4 --
3
holder to get knowledge of documents served upon her. So far as non
service of writ of summons is concerned, it is raised by the plaintiff
before the Court for the first time in the Notice of Motion. Therefore, it
is not acceptable. However, considering the age of defendant No.2 and
the fact that she was unable to understand the contents of envelop, it
would be proper to give her chance to defence the suit. The delay
caused in the proceedings due to the conduct of Defendant No.2 can be
compensated in the terms of cost. Therefore, I am inclined to condone
the delay for filing written statement subject to the payment of costs.
Accordingly, I proceed to pass the following order.
O R D E R
1. Notice of Motion No.2389 of 2019 is allowed subject
to the payment of costs of Rs. 1,000/– by defendant
No.2 to the plaintiff.
2. On payment of costs, written statement of defendant
No.2 be accepted for taking on record.
3. Notice of Motion No.2389 of 2019 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date:04.04.2022 Gr.Mumbai.
Dictated on: 04.04.2022
Typed on : 06.04.2022
Signed on : 07.04.2022
-- 3 of 4 --
4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
RE-UPLOAD DATE AND TIME NAME OF STENOGRAPHER
07.04.2022 AT 2.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of
Judgment/Order
04.04.2022
Judgment/Order signed by P.O. on 07.04.2022
Judgment/Order re-uploaded on 07.04.2022
-- 4 of 4 --