Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2522/2019 L.C. Suit No.315/2015
CNR No. MHCC01-006925-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2522 OF 2019
IN
L.C. SUIT NO. 315 OF 2015
1. Bhalchandra Raghunath Waikar )
(deceased through heirs) )
1(a) Smt. Vijaymala Bhalchandra Waikar )
Age-yrs, Occ – House wife, )
R/o 502, Somwar Peth, Pune – 37 )
2. Vishwasrao Raghunath Waikar )
(deceased through heirs) )
2(a) Smt. Kamal Vishwasrao Waikar, )
Age -81 yrs, Occ - Housewife )
R/o 65, Kalyan Peth, Junnar, )
Pune – 410 502. )... Plaintifs.
Vs.
1. The Municipal Corporation of )
Gr. Mumbai through Additional )
Municipal Commissioner Mahanar Palika )
Head Ofce, 3rd Floor, Extension Building, )
Mahapalika Marg, Fort, Mumbai – 400 001 )...Defendants.
APPEARANCE:-
Ld. Adv. Mr. P.A. Tawade for the plaintifs.
Ld. Adv. Mr.Vyavahare for the defendant No.1/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C. P. JAIN (C.R.NO.06)
DATED : 05th FEBRUARY, 2020.
O R D E R
This Notice of Motion is fled by defendant
No.1/MCGM for condonation of delay in fling the written
statement.
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2. In the afdavit fled in support of Notice of Motion,
it is averred by defendant that defendant being statutory and
public body and a vast organization, due to heavy workload
this defendant failed to fle the written statement in time.
Defendant was required to take instructions, however due to
transfer of concerned ofcer, it was not possible to get the
required information in time. There is also shortage of staf in
defendant corporation. Defendant has very good case and
unless this defendant fles the written statement, the correct
facts and legal position will not be pointed out to the court.
For aforesaid reasons, they could not fle the written-
statement in time. Defendant therefore prayed to allow its
notice of motion.
3. Heard both the learned advocates and perused the
proceeding. Learned advocate for defendant argued in lines
of the pleadings in the notice of motion. Whereas, Ld.
Advocate for plaintif has strongly objected to this notice of
motion.
4. I have given anxious consideration to arguments of
both the learned advocates. At the outset, it is not in dispute
that in order to condone delay, defendants have to make out
sufcient cause. What is sufcient cause has been explained
in the citation of Balwant Singh (Dead) V/s. Jagdish
Singh and others reported in (2010) 8 SCC 685. Liberal
construction of the expression “sufcient cause” is intended
to advance substantial justice which itself presupposes no
negligence or inaction on the part of the applicant, to whom
want of bonafdes is imputable. The expression “sufcient
cause” implies the presence of legal and adequate reasons.
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The word “sufcient” means adequate enough, as much as
may be necessary to answer the purpose intended. It
embraces no more than that which provides a plentitude
which, when done, sufces to accomplish the purpose
intended in the light of existing circumstances and when
viewed from the reasonable standard of practical and
cautious men. The sufcient cause should be such as it would
persuade the court, in exercise of its judicial discretion, to
treat the delay as an excusable one. The party should show
that besides acting bonafde, it had taken all possible steps
within its power and control and had approached the court
without any unnecessary delay. The test is whether or not a
cause is sufcient to see whether it could have been avoided
by the party by the exercise of due case and attention.
5. In light of aforesaid legal pronouncement, it needs
to be seen as to whether defendant has made out sufcient
cause for condoning the delay or whether plaintif has
succeeded in bringing on record inaction, negligence,
malafdes on part of defendant, to reject the notice of motion
of defendant.
6. Defendant has afrmed on oath the reasons for
which delay is caused in fling written statement. According to
him, defendant being statutory and public body and a vast
organization, due to heavy workload this defendant failed to
fle the written statement in time. Defendant was required to
take instructions from diferent departments and it was not
possible to get the draft of written statement approved within
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stipulated time. For aforesaid reasons, there is delay which is
unintentional and not deliberate.
7. Defendant has made out reasons in their notice of
motion as to why it could not fle written statement within
time. Plaintif failed to contest the notice of motion by
denying the averments in notice of motion on oath. As no
doubt is created in aforesaid reasons, it can be safely said
that defendant has made out sufcient cause to condone the
delay. No inaction, negligence or malafdes are pointed out by
plaintif. Therefore, Defendant has made out sufcient cause
can be concluded.
8. The observations in the cited case of R.N. Jadi &
Brothers V/s. Subhashchandra reported in (2007) 6
SCC 420 further come to aid of defendants in which it is
observed that, Procedural law is handmaid of justice. In an
adversarial system, no party should ordinarily be denied the
opportunity of participating in the process of justice
dispensation. Unless compelled by express and specifc
language of the statute, the provisions of CPC or any other
procedural enactment ought not to be constructed in an
manner which would leave the court helpless to meet
extraordinary situations in the ends of justice. Procedural
prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice.
Therefore, the arguments of learned advocate for defendant
needs to be countenanced as against the arguments of
learned advocate for plaintif.
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9. Afdavit of service shows defendant is served in
April 2015. However, though there is nothing on record that
the delay caused is malafde, considering the period elapsed,
it cannot be concluded that the delay is short delay. Though
defendant corporation is statutory body, law is equal for all.
The mandate of Order 8 Rule 1 of Code of Civil Procedure is
equally applicable to defendant corporation. Applying the
principles laid down in the aforesaid citations and Order 8
Rule 1 of CPC being directory in nature, suit needs to be
decided on merits by giving opportunity to defendant.
Therefore, notice of motion of defendant deserves to be
allowed on costs. Therefore, I proceed to pass following order.
ORDER
1. The Notice of Motion No.2522/2015 is hereby allowed
subject to costs of Rs.4,000/-(Rs. Four Thousand Only) to be
paid by defendant No.1/MCGM to plaintifs on or before next
date.
2. Upon depositing the costs as per clause (1) of this order,
the order dated 09.10.2014 passed against defendant No.1/
MCGM shall stand set aside so also the delay caused in fling
written statement shall stand condoned and the written
statement tendered on record by defendant No.1/MCGM shall
be taken on record.
3. The Notice of Motion No.2522/2015 is accordingly
disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date :05.02.2020. City Civil Court, Gr. Bombay
Dictated on : 05.02.2020.
Transcribed on : 05.02.2020.
Signed on : 07.02.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.02.2020, 02.48 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
05.02.2020
JUDGMENT/ORDER signed by
P.O. on
07.02.2020
JUDGMENT/ORDER uploaded on 11.01.2020
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