Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.2529/2019 ..1.. In S.C. Suit No.425/2016
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 2529 OF 2019
IN
S.C. SUIT NO. 425 OF 2016
CNR NO :- MHCC01-006947-2019
1. Sulochana V. Rai W/o Venugopal Rai,
Age : 55 Years, Occ.: Housewife,
Residing At : B/702, Sairadha Complex,
LBS Marg, Bhandup (West),
Near Asian Paint, Mumbai - 400 078.
2. Subha M. Sharma W/o Mukesh Sharma,
Age : 42 Years, Occ.: Housewife,
Residing At : B/702, Sairadha Complex,
LBS Marg, Bhandup (West),
Near Asian Paint, Mumbai - 400 078.
As also having address at : B/604,
Rose Garden, Near Konark Compus,
Viman Nagar, Pune - 411 014. ...Plaintiffs
Versus
1. Shashidhar S. Shetty S/o Shambhu Shetty
Age : 55 Years, Occ.: Business,
Having Address At : Shop No. 13,
Pereira Compound, Himalaya Society,
Govind Nagar, Asalfa Village,
Ghatkopar (West), Mumbai - 400 084.
2. Shakuntala Shetty S/o Shambhu Shetty
Age : 50 Years,
Residing At : C/105, Building No. 12,
Abhilasha Co-operative Housing Society Ltd.,
MHADA Colony, Chandivali, Mumbai - 400 072.
3. Sudhakar Shetty S/o Shambhu S. Shetty
Age : 49 Years, Occ.: Advocate,
Having Address At : Room No. 116,
B Wing, 1st Floor, Bhaveshwar Arcade,
Above Saraswat Bank, Opp. Shreyas Talkies,
LBS Marg, Ghatkopar (West), Mumbai - 400 086.
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Notice of Motion No.2529/2019 ..2.. In S.C. Suit No.425/2016
4. Ratnakar Shetty S/o Shambhu Shetty
Age : 48 Years, Occ.: Service,
Residing At : Flat No. 2, Ground Floor,
Building No. 101, Rajashree Iris,
Tilak Nagar Eagle Co-operative Society Ltd.,
Tilak Nagar, Chembur, Mumbai - 400 089.
5. Prema Prabhakar Shetty W/o
Late Prabhakar Shambhu S. Shetty
Age : 42 Years, Occ.: Housewife,
Having Address At : C/o. Adv. Sudhakar S. Shetty,
Room No. 116, B Wing, 1st Floor, Bhaveshwar Arcade,
Above Saraswat Bank, Opp. Shreyas Talkies,
LBS Marg, Ghatkopar (West), Mumbai - 400 086.
6. Sandhya Ratnakar Shetty W/o Ratnakar Shetty
Age : 40 Years, Occ.: Housewife,
Residing At : Flat No. 2, Ground Floor,
Building No. 101, Rajashree Iris,
Tilak Nagar Eagle Co-operative Society Ltd.,
Tilak Nagar, Chembur, Mumbai - 400 089. ...Defendants
Appearance :-
Mr. K. B. Adyanthaya, Advocate for the Plaintiff.
Mr. Mujahid Banani h/f Mr. Abhay Singh, Advocate for defendant No. 2.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 23RD FEBRUARY, 2021.
ORAL ORDER
By this notice of motion defendant No. 2 has prayed to
condone the delay of 1177 days in filing the notice of motion for setting
aside order dated 05.04.2016 by which the suit proceeded without
written statement of defendant No. 2 and has also prayed to condone
the delay of 1173 days in filing the written statement.
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Notice of Motion No.2529/2019 ..3.. In S.C. Suit No.425/2016
2. In brief, it is her case that, on 01.03.2016 she appointed an
advocate and he appeared in the matter on same day. However, after
01.03.2016 she lost the track of the matter. On 05.04.2016 her
advocate was present, but could not file the written statement for want
of instructions. There are several interim applications filed by the
parties to suit to which defendant No. 2 was least concerned.
Therefore, she did not take active part in such interim proceedings. The
Court had framed preliminary issues which came to be answered on
26.06.2018. Thereafter, the proceedings have begun. Defendant No. 2
was under belief that, the litigation will come to an end immediately as
the dispute is between brothers and sisters. However, it did not so
happen. She is eldest sister of the family. The delay caused is neither
intentional or deliberate. Therefore, the delay be condoned.
3. The plaintiff has opposed the notice of motion on the
ground that, there is gross negligence on the part of defendant No. 2.
The delay is deliberate an intentional. No satisfactory reason is made
out to condone the delay. Defendant No. 2 and her advocate were fully
aware of the proceedings, but the written statement is deliberately not
filed. No steps were taken for setting aside the order dated 05.04.2016.
The alleged efforts or hope of amicable settlement is falsely pleaded.
4. Perused. Heard.
5. The provisions of Order 8, Rule 1 of CPC are amended so as
to provide a limitation of 30 days for filing the written statement which
is extendable up to 90 days from the date of service of summons for
reasons to be recorded in writing by the Court.
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Notice of Motion No.2529/2019 ..4.. In S.C. Suit No.425/2016
6. The object behind such amendment was to curtail the delay
unnecessarily caused in the trials of the Civil Suits. It is also based on a
principle the parties to suit should be diligent enough to proceed with
the suit expeditiously.
7. No doubt the provisions of Order 8, Rule 1 are directory
but then the delay in filing written statement can only be condoned, if
defendant makes out a ground revealing that, she was precluded from
filing the written statement within time or that there are other sufficient
grounds which entitle him or her to file the written statement beyond
the statutory time.
8. Perusal of the affidavit in support of notice of motion
reveals that, no sufficient ground at all is made out by defendant No. 2
to condone the delay of 1177 days. Longer the delay strong should be
the ground to explain it. Heavy will be the onus on a defendant praying
to condone the delay. However, perusal of affidavit in support of notice
of motion reveals that, no strong ground is made out to condone the
delay.
9. The statements in paragraph 3 of the affidavit in support of
notice of motion reveal that, defendant No. 2 was aware that several
interim proceedings were taken out by the parties to suit, she is also
aware that, the Court had framed preliminary issues and answered
those on 26.06.2018. This reveals that, defendant No. 2 was aware of
the Court proceedings. This itself indicates that, she was in a position
to know the stages in the suit and thus was expected to file a written
statement in time or at least to take out notice of motion immediately
after passing of the order on 05.04.2016. However, the notice of
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Notice of Motion No.2529/2019 ..5.. In S.C. Suit No.425/2016
motion is taken out on 28.06.2019 i.e. after more than three years from
the date of impugned order.
10. If such a gross delay is condoned in absence of strong
ground revealing that, defendant was precluded from filing written
statement, the litigants will loose faith in law. Considering that no
acceptable reasons is made out by defendant No. 2 to condone such a
gross delay, and the object behind the provisions of Rule 1, Order 8 of
CPC, I hold that the notice of motion cannot be allowed. Hence,
following order :-
ORDER
Notice of Motion No. 2529/2019 is dismissed with
costs.
(AJIT N. MARE)
Judge,
Date : 23.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 23.02.2021
Transcribed on : 24.02.2021
HHJ Signed on : 26.02.2021
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Notice of Motion No.2529/2019 ..6.. In S.C. Suit No.425/2016
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
26.02.2021 5.25 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 23.02.2021
Order signed by P. O. on 26.02.2021
Order uploaded on 26.02.2021
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