Order 1

Order Details: Order below exhibit
Pdf Text: Suit No. 136 OF 2019
Order below Exhibit-08 Page No.1 Dated 12-03-2026
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GREATER
BOMBAY
ORDER BELOW EXHIBIT-08
IN
SUIT NO. 136 OF 2019
(CNR NO. MHCC01-006980-2018)
M/s. Awfi Real Estate Pvt. Ltd. … Applicant/Org.Def.No.2
In the matter between,
Rafiullah M. Q. Shaikh & Anr. … Plaintiffs
Versus
Mohammed Fahim Nasibullah Khan and Ors. … Defendants
-----------------------------------------------------------------------------------------------
Appearance :-
Zainab R. Shaikh, Plaintiff no. 2 in person.
Advocate Mr. Chirag Bhatia a/w advocate Ms. Prathanaa Thaker for
defendant No. 2.
-----------------------------------------------------------------------------------------------
CORAM :- HH THE SPECIAL JUDGE (N.D.P.S.)
& ADDITIONAL SESSIONS JUDGE,
ARVIND MANOHAR BHANDARWAR
(COURT ROOM NO.42)
DATE :- 12th March, 2026
( O R D E R )
(Dictated and pronounced in the open Court)
Heard Zainab R. Shaikh, Plaintiff No. 2 in person and
Advocate Mr. Chirag Bhatia a/w advocate Ms. Prathanaa Thaker for
defendant No. 2.
2. The Defendant No. 2 has filed the present application
seeking to take the written statement on record on the ground that
-- 1 of 5 --
Suit No. 136 OF 2019
Order below Exhibit-08 Page No.2 Dated 12-03-2026
Defendant No. 2 was not served with the writ of summons. It is
contended that after the plaintiff carried out the amendment and the
matter was fixed for filing written statement. The writ of summons is
not served upon Defendant No. 2, hence, no cause of action accrued to
file a written statement. Therefore, contended that there is no necessity
to file an application seeking permission to file the written statement.
Even if there is any delay, the same deserves to be condoned and the
written statement be taken on record.
3. Learned advocate for Defendant No. 2 has placed reliance
on the judgment in the case of Metro Ortem Ltd. -Vs- Maharashtra State
Road Transport Corporation, reported in 2022 SCC OnLine Bom 7238.
It is submitted that the appearance of an advocate and the filing of a
Vakalatnama by him cannot and does not dispense with the
requirement of service of the writ of summons. It is further contended
that in view of the said authority, in the absence of service of the writ of
summons, the prescribed time limit for filing the written statement does
not commence.
4. Defendant no.2 has further placed reliance upon the case
in Gautam Dham Co-operative Housing Society Limited -Vs- Funds and
Properties of Parsi Panchayat (Interim Application No.4761 of 2025 in
Suit No.393 of 2022, Order dated 20-09-2025) [Hon’ble High Court]. It
is held therein that the period of limitation for filing the written
statement would commence only from the date on which the writ of
summons alongwith a copy of the plaint is served upon the defendant
no.2.
5. Defendant no.2 has further placed reliance upon a case in
Tardeo Properties Pvt. Ltd. -Vs- Bank of Baroda (Appeal No. 713 of
-- 2 of 5 --
Suit No. 136 OF 2019
Order below Exhibit-08 Page No.3 Dated 12-03-2026
1999 in Suit No. 1567 of 1987, Judgment dated 13-07-2007), it is on
the same principle. In view of the above cited authorities, it is submitted
that defendant no.2 be allowed to file written statement.
6. The plaintiff has strongly opposed the present application
contending that Defendant No. 2 was well aware of the present suit and
has been participating in the proceedings since the date of filing of the
suit. The reliance is placed upon a case in Meena Ramesh Lulla -Vs- Shri
Omprakash A. Alreja (Appeal No.616 of 2011, Order dated 21-09-
2011). The reference was specifically made to paragraph nos. 8 and 12
of the said judgment and it was submitted that once a Vakalatnama is
filed and the party appears before the Court, the limitation period
commences and the concerned application is expected to be filed within
the prescribed period. However, Defendant No. 2 has waited till this
date and has filed the present application after considerable delay,
which is not maintainable in law. Hence, the plaintiff has prayed for
rejection of the present application.
7. It is true that as per the provisions of law, the written
statement is required to be filed within a period of 30 days and the said
period may be extended up to 90 days from the date of service of the
writ of summons. During the course of arguments, the learned advocate
for defendant no. 2 pointed out that the plaintiff has not filed the
affidavit of service in respect of the service of plaint and documents
upon defendant no. 2. It was further submitted that the writ of
summons has also not been served upon defendant no. 2. I have gone
through the roznama and it is the clear position as submitted by the
plaintiff that the affidavit of service was not filed on record.
8. In the case where there is no evidence to show the plaint
-- 3 of 5 --
Suit No. 136 OF 2019
Order below Exhibit-08 Page No.4 Dated 12-03-2026
was served on defendant no.2 and as per the rules of City Civil Court,
unless the service affidavit is filed and the copy of plaint and documents
are supplied the time limit to file written statement would not start.
Therefore, this Court is of the view that an opportunity needs to be
granted to the defendant no. 2. That a part, on record there is no order
to show that matter is proceeded without written statement or no reply.
Thus, the Court has also not forfeited right of defendant no. 2 for filing
a Written Statement. Therefore, case is made out in favour of defendant
no. 2 to file written statement. In view of the above circumstances, the
application moved by the defendant no. 2 is hereby allowed.
Accordingly, I pass the following order :-
ORDER
1. Application Exhibit-08 in Suit No. 136 of 2019 is hereby
allowed, subject to cost of Rs. 5000/- (Rupees Five Thousand
Only) payable to plaintiff.
2. Application Exhibit-08 stands disposed off accordingly.
Sd/-
(Arvind M. Bhandarwar)
Special Judge (N.D.P.S.) and
Additional Sessions Judge,
Court Room No.42
Date :- 12-03-2026 City Civil & Sessions Court,
Greater Mumbai.
-- 4 of 5 --
Suit No. 136 OF 2019
Order below Exhibit-08 Page No.5 Dated 12-03-2026
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of the Stenographer
30-03-2026 11:00 a.m. Mr. Jitesh Suresh Shinde,
Stenographer (Grade-I)
Name of the Judge (With C.R. No.) H.H.J. ARVIND MANOHAR
BHANDARWAR
(COURT ROOM NO.42)
Date of Pronouncement of
JUDGEMENT /ORDER
12-03-2026
JUDGEMENT /ORDER signed by
P.O. on
20-03-2026
JUDGEMENT /ORDER uploaded
on
30-03-2026
-- 5 of 5 --