Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2196 OF 2018
IN
SUIT NO.157 OF 2018
Manoj Surendra Mishra & ors ...Plaintiffs
V/s.
Yogendra J. Mishra & ors. ...Defendants
Appearances:
Plaintiff in person.
Ajay Law Associates for defendant Nos.2 and 4.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 12th November,2018
ORDER
By way of this notice of motion defendant Nos.2 and 4 sought
condonation of delay of 62 days for permitting them to tender their
written statement on record.
2. In supporting affidavit to the notice of motion of Smt.Rajkumari
Mishra and Smt.Reena Shastri, defendant Nos.2 and 4 respectively,
submitted that, they have received the written statement dt.09.01.2018
on 05.03.2018 and it was mistakenly signed and received on behalf of
defendant Nos.3 and 4 by defendant No.2. However, defendant No.2 all
of sudden received the writ of summons in the above suit and does not
know to read and understand English. Therefore, she waited for the
defendant No.4 to come from Borivali, Mumbai, where defendant NO.4
is residing with her husband and children. When visited and
understand the same, they got aware about this matter. Hence, they
MHCC01-007101-2018
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contacted their Advocate and instructed them to file written statement
on record. All these facts have taken some time and therefore, delay
occurred in filing written statement. Defendant No.2 is senior citizen
and defendant NO.4 is the Vice Principal of school and therefore, could
not attend the queries of Advocate. If delay is not condoned and
written statement is not taken on record gave and irreparable harm and
prejudice shall be caused to them and they will be deprived from their
rights. In such circumstances, they prayed that notice of motion be
made absolute.
3. Plaintiff filed reply to this notice of motion and submitted that,
they submitted to the order of the Court. But delay is of 80 days and
not of 62 days as mentioned. The reasons are also not proper and
therefore, if defendant Nos.2 and 4 are permitted to file written
statement on record heavy costs may be imposed on them.
4. Heard both the sides. Perused the record and submissions.
5. The reasons mentioned is that, defendant No.2 is a senior citizen
and defendant No.4 is the VicePrincipal of school could not attend the
queries of the advocate for finalizing the written statement, therefore,
delay occurred is proper and sufficient reason to condone the delay. The
plaintiff is also not objected for the same subject to the payment of
costs. Defendant No.2 received write of summons on 05.03.2018 and
they have appeared before the Court 07.04.2018 and filed written
statement on record. Therefore, there is delay in filing written
statement of defendant Nos.2 and 4 as per O.VIII R.1 of C.P.C. If delay
is condoned at this stage subject to costs, it will suffice ends of justice.
Defendants have right to defend suit with whatever defence available to
them.
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6. On quantum of costs I have heard both the sides. Plaintiff in
person submitted to the order of the Court. Therefore, considering the
nature of the suit and delay explained properly, costs of Rs.1,000/ each
payable to plaintiff will meet the ends of justice. In such circumstances,
notice of motion needs to be made absolute. Hence, I proceed to pass
the following order :
O R D E R
1. Notice of Motion No.2196 of 2017 in Suit No.157 of
2018 is made absolute subject to payment of costs of
Rs.1,000/ each by defendant Nos.2 and 4 to plaintiff on
or before next date.
2. Written statement has already been filed by defendant
Nos.2 and 4 on record, is taken on record at Exh.7.
(ABHIJEET A. NANDGONKAR )
Judge, (C.R.No.20)
Dt.:12/11/2018 City Civil Court, Gr. Mumbai
Dictated on : 12.11.2018
Transcribed on : 13.11.2018
Signed on : 13.11.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.11.2018 at 5.31 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 12.11.2018
Judgment/order signed by P.O. on 13.11.2018
Judgment/order uploaded on 13.11.2018
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