Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 2189/18 in L.C. Suit No.2956/11
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 2189/18
IN
L.C. SUIT NO.2956/2011
Shashuddin Yasin Khan
having address at Gala on C9A,
carrying business of Motor Garage
Teen Works, Bharat Coal Compound,
Kajupada Pipe Line,
Kurla (W), Mumbai 400 072. Plaintiff.
V/s.
The Brihanmumbai Municipal Corporation
a statutory body incorporated under the
Bombay Municipal Corporation Act 1888
having its head office at Mahapalika,
Building, Mahapalika Marg,
Fort, Mumbai – 400 001. Defendants.
Advocate Mr. Asit Singh for Plaintiff.
Advocate Mr. Mohit Jadhav with Adv. Ms. Hajare for Deft./BMC.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 12th JULY, 2018
ORAL ORDER
The defendants/BMC have taken out present notice of
motion for condonation of delay in filing their written statement and to
set aside No WS order dated 01.11.2017.
2. The defendant submits that being the statutory and public
body it is a big organization and due to heavy work load they could not
filed their written statement in time on record. Plaintiff filed present
-- 1 of 4 --
:2: NM 2189/18 in L.C. Suit No.2956/11
suit for the declaration that the notice dated 16.05.2011 is issued under
Section 55 of MRTP Act and order passed on 03.09.2011, is illegal.
Plaintiff also prayed for allowing to reconstruct the suit premises. These
defendants are required to take instruction from the different
department, therefore, there is a delay in filing written statement.
3. The officers of defendants have to perform various duties
on field work and sometime not able to reach for affirmation of
affidavit. On 01.11.2017 the reply was ready but officer couldn't
reached to affirm the affidavit therefore, defendant couldn't filed reply
on that day and no WS order was passed. Being the public authority
and larger interest of general public the delay may be condoned and the
WS of the defendants pleased be taken on record. Hence, prayed to
allow the notice of motion in terms of prayer clause.
4. Plaintiff filed their reply, thereby strongly objected present
notice of motion on the ground that the writ of summons was served to
defendant on February 2013 and after lapse of 5 years, they have taken
out this notice of motion. The defendant failed to explain the delay
caused to file written statement. As per the Order VIII Rule 1 of CPC
after receipt of writ of summons the WS has to be filed within 30 days
and by showing sufficient reason the WS can be filed within 90 days.
The defendant failed to file WS on record within stipulated period. The
defendant failed to give documentary evidence that their affidavit was
ready on 01.11.2017. Defendant also not given any reason of delay
hence, prayed to reject the NM.
5. Heard both the sides.
After perusal of record it is observed that in spite of receipt
of writ of summons defendant failed to file their WS on record, but at
-- 2 of 4 --
:3: NM 2189/18 in L.C. Suit No.2956/11
the same time it has to be taken into consideration that the defendant is
the public authority. It is very big establishment and for taking
instructions from various department it takes some time. Therefore,
there is delay in filing WS on record. Defendant being the public
authority, considering the said fact, I proceed to pass following order :
ORDER
1. Notice of Motion No. 2189/18 is made absolute in terms of
prayer clause 'a' and 'b'.
2. Direction given to the defendant/BMC to file their written
statement on record.
3. NM disposed of accordingly.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 12/07/2018.
Dictated on : 12/07/2018
Transcribed on : 13/07/2018
Signed on : 13/07/2018
-- 3 of 4 --
:4: NM 2189/18 in L.C. Suit No.2956/11
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17/07/2018 At 5.34 p.m. MRS. K. S. JADHAV
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
12/07/2018
Judgment/Order signed by P.O. on 13/07/2018
Judgment/Order uploaded on 17/07/2018
-- 4 of 4 --