Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.2478/19 in S.C. Suit 4136/2012 1
Date :21.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER
MUMBAI
NOTICE OF MOTION NO.2478 OF 2019
IN
S.C. SUIT NO. 4136 OF 2012
(CNR.NO.MHCC010068162019)
Prithviraj Sitaram Malvankar ) ….Applicant
In the matter between
Hanumant Sitaram Malvankar ) ….Plaintiff
VERSUS
Prithviraj Sitaram Malvankar & Ors. ) .... Defendants
Appearances:
Adv. for plaintiff present.
Adv.Akanksha Helaskar for defendant no.1 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Addl. Judge
CR No. : 07
Dated : 21.08.2019
: ORDER :
1. The defendant no. 1 has filed instant Notice of Motion for
condonation of 1 year and 154 days delay in filing Written
Statement and allowing him to file Written Statement on record.
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N.M.2478/19 in S.C. Suit 4136/2012 2
2. It is contended by the defendant no. 1 that initially the
present suit was filed by the plaintiff before Hon'ble High Court in
July 2012. He did not receive the suit summons till January 2013.
However, due to the change in pecuniary Jurisdiction, the present
suit came to be transferred to Bombay City Civil Court.
3 It is contended by the defendant no. 1 that on or about
February 2013, he was served with the Writ of Summons and
Notice Of Motion No. 2194 of 2012 filed by the plaintiff for grant
of Interim relief. He, in order to defend the aforesaid Notice of
Motion, has appointed lawyer and gave instructions to prepare
Written Statement and reply to Notice of Motion. However, his
earlier Advocate inspite of persuasion, could not filed Written
Statement and reply. Therefore, he has changed the earlier
Advocate and appointed Advocate Mr. A.B.Nagvekar and Adv. Mr.
G.V. Aiman to contest the present suit. They have advised the
defendant no. 1 to file reply to the Notice of Motion. Therefore,
on 03.07.2013, the defendant no. 1 filed reply to the Notice of
Motion No. 2194 of 2012. The aforesaid Notice of Motion came to
be decided by this Court vide, order dated 01.07.2014 and
thereafter, directed him not to create third party interest in the suit
flat.
4. It is further contended by the defendant no. 1 that on
26.09.2014, the present suit came to be dismissed for non
prosecution. Therefore, the plaintiff after period of 1 year, took
out Notice of Motion No. 2263 of 2015 for restoration of the
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N.M.2478/19 in S.C. Suit 4136/2012 3
aforesaid suit. The aforesaid suit came to be restored vide, order
dated 11.10.2018 subject to the payment of cost of Rs. 3,000/ to
be payable to defendant no. 1. The Court further ordered for
issuance of fresh Writ of Summons, which was served to the
defendant no. 1 on 08.03.2019.
5. It is contended by the defendant no. 1 that in the month of
February 2019, it came to his knowledge about restoration of the
suit. After receipt of Writ of summons, the defendant no. 1
appeared on 16.03.2019 alongwith his Advocate. However, he
was not received complete documents annexed with the plaint.
Thereafter, the defendant no. 1 was suffering from sever arthritis,
therefore, he could not approach his advocate for giving
instructions for the purpose of preparation of Written Statement.
Thus, there is a delay of 1 year and 154 days caused in filing
Written Statement.
6. It is contended by the defendant no. 1 that he has very good
case on merit as well as on law. If he would not be allowed to file
Written Statement, which would cause prejudice to him. It is
contended by the defendant no. 1 that provision of Order VIII Rule
1 of Code of Civil Procedure is not mandatory in nature. The delay
can be condoned and Written Statement can be accepted even
after expiry of 90 days from the date of Service of Summons in
exceptionally hard cases. It is further contended by the defendant
no. 1 that, the Court while entertaining application for
condonation of delay need to consider the same on sympathetic
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ground and without going into technicalities. The defendant in
support of his contention relied on the Judgment of Hon'ble
Supreme Court, reported in (2005) 4 Supreme Court Cases 480
in case of Kailash V/s. Nanhku & Ors. and Judgment of
Supreme Court, reported in (2008) 11 Supreme Court Cases
769 in case of Zolba V/s. Keshao & Ors.
7. Per contra plaintiff orally opposed the Notice of Motion
without filing his say. It is contended by the plaintiff that, the
defendant no. 1 had made wrong statement before the Court.
Defendant no. 1 was present at the time of passing of order dated
11.10.2018 in Notice of Motion No. 2263 of 2015 whereby, the
suit was restored subject to the payment of the cost but, inspite of
that, the defendant no 1 made false statement that he got
knowledge of the restoration in the month of February 2019. It is
further contended by the plaintiff that the suit summons were
served to the defendant no. 1 in the month of February 2013,
inspite of that the defendant no. 1 failed to file Written Statement.
The defendant no. 1 failed to assign any cogent and sufficient
reasons to condone the delay. Hence, the plaintiff prayed for
dismissal of Notice of Motion.
8. I have heard both the sides. It is admitted fact that on
26.09.2014, the suit was dismissed for non prosecution and it was
restored vide, order dated 11.10.2018. The fresh Writ of
Summons were issued and as per contention of the defendant no.
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1 that he has received Writ of Summons on 08.03.2019. Thus, in
my view, the limitation for filing Written Statement would
commenced from the date of receipt of fresh Writ of Summons.
There is no challenge by the plaintiff that the defendant no . 1 has
not received fresh Writ of Summons on 08.03.2019 and defendant
no. 1 appeared on 16.03.2019.
9. As per Order VIII Rule 1 of Code of Civil Procedure, the
defendant no. 1 ought to have filed Written Statement within 30
days i.e. on or before 07.04.2019. The aforesaid period of 30 days
can be extendable upto 90 days which comes to 06.06.2019. From
the record, it appears that defendant no. 1 registered present
Notice of Motion on 05.06.2019. Therefore, after considering the
aforesaid fact, in my view, in fact there is no delay as such beyond
90 days. The defendant no. 1 assigned reasons of not filing
Written Statement due to the change of Advocate and his ailment.
Even otherwise also the defendant no. 1 is senior citizen. Thus,
after considering the aforesaid facts and circumstances without
going into the technicalities, in my view, the delay needs to be
condoned and defendant no. 1should be allowed to file Written
Statement on record. Thus, I proceed to pass the following order.
ORDER
1. Notice of Motion No. 2478 of 2019 is made absolute in terms
of prayer clause “a to c”.
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2. The defendant no. 1 is allowed to file Written Statement
withing one week from the date of order.
3. Notice of Motion No. 2478 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 21.08.2019 Greater Mumbai
Dictated on :21.08.2019
Typed on : 21.08.2019
Draft submitted on : 21.08.2019
Checked on : 22.08.2019
Signed on : 22.08.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
22/08/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
21/08/2019
JUDGMENT/ORDER signed by P.O.
on
22/08/2019
JUDGMENT/ORDER uploaded on 22/08/2019
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