Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.2535 OF 2019
IN
S.C.SUIT NO.11 OF 2019
Mrs.Farida Haseen Ahmed Quereshi .... Plaintiff
V/s
1. Nasir Mohammad Miya Qureshi
& Ors. .....Defendants
APPEARANCE:
Advocate Mr.Vinod Singh for plaintiff.
Advocate for defendant absent.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 18th October, 2019
ORDER
Perused contention in the Notice of Motion @ Affidavit.
Perused entire record.
It is submitted that the plaintiff has filed suit against defendant.
And defendant appeared in response of writ of summons. It is further
submitted that he does not found certain document on which he was
relied in support of his defense. He applied for the said documents for
the certified copies and copies was furnished to them on 21.06.2019 by
Metropolitan Magistrate (2nd Court) Mazgaon, Mumbai. However, on
12.06.2019 matter was adjourned on 28.06.2019 and 11.06.2018. It is
further submitted that written statement of defendants could not be
filed within the statutory period of 30 days. It is further submitted that
delay caused for filling written statement which is bonafied and
defendant is having good case on merit. Lastly, it is submitted that
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delay for filling written statement may kindly be condoned and
defendant may be permitted to file written statement.
In support of notice of motion the defendant tender written
statement.
As per record in view of order dated 16.09.2019 the present
Notice of Motion is proceeded without reply of plaintiff.
Ld counsel for plaintiff Vinod Singh is present before the court, it
is submitted that he opposed the Notice of Motion on the ground that
the defendant has deliberate cause delay for filling written statement. It
is further submitted that the defendant has not explained the reason for
filling written statement on record within stipulated time. Lastly, it is
submitted that Notice of Motion tendered by defendant without any
valid ground and it may be rejected with cost.
Ld counsel for defendant is absent when repeatedly called.
After gone through the entries in roznama it is disclosed that the
defendant nos.1 and 2 appeared in the suit and tendered vakalatnama
of their advocate below Exh6 on 19.03.2019. Thereafter, matter was
adjourned and again they seek time to file written statement and
accordingly time is extended to the defendant for filling written
statement. As per O.VIII R.1 of CPC it is mandatory on the part of
defendant to tender written statement within 30 days provided that if
he could not tender the written statement within 30 days then time can
be extended till 90 days if defendant show satisfactory cause.
Admittedly, in the present suit the defendant has failed to tender
written statement within 30 days. However, he raised ground that he
has applied for the certified copies in the court of Metropolitan
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Magistrate (2nd Court), at Mazgaon Mumbai and copy was furnished to
them on 21.06.2019. The certified copies of protest petition bearing no.
392/MISC/2017 and other papers filed by defendant in support of its
contention. I have also verified the copies on record and the date of
furnishing certified copies and come to the conclusion that the ground
raised by defendant for getting document from the court of
Metropolitan Magistrate at Mazgaon are appears to the genuine one. It
is to be noted here the defendant has tendered written statement @
Notice of Motion. It means intention of defendant is very clear to
contest the suit by filling written statement. However, without
document which is laying in the court of law he cannot tender his
written statement in the court within stipulated time as contemplated
under O VIII R.1 of CPC. Therefore I come to conclusion that delay is
properly explain by the defendant and therefor he is entitled to grant
permission for filling written statement after stipulated time. Hence I
proceed to pass following order
ORDER
1) Notice of Motion No. 2535 of 2019 is allowed in the above said
terms.
2) Defendant is permitted to tender written statement on record and
also tender copy of written statement to the plaintiff.
Date:18/10/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 18/10/2019
Typed on :18/10/2019
H.H.J.Signed on :18/10/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
18.10.2019 at 12.20 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
18.10.2019
JUDGMENT/ORDER signed by P.O. on 18.10.2019
JUDGMENT/ORDER uploaded on 18.10.2019
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