Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2615 OF 2019
(CNR NO.MHCC010071852019)
IN
S. C. SUIT NO.2028 OF 2017
Dr. Abu Shueb son of Mohd. Yahya ].. Plaintiff
Versus
1. Mohd. Ramajan Mohd. Yunus, ]
2. Mohd. Shaban Mohd. Yunus, ]
3. Mrs. Shahzahan Mohd. Shaban. ].. Defendants
Appearances :
Ld. Adv. Ram Singh for plaintiff.
Ld. Adv. Ravindra Singh for defendants
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 01/04/2023.
ORDER
1. This notice of motion is taken out by the defendants for
setting aside the No W.S order passed by this court on 20/04/2018
against the defendant Nos.2 and 3 and for condonation of delay.
2. It is the contention of the defendant No.2 that in January
2018 his father was suffering from various diseases, who was at native
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place and there was nobody to take his care. During the relevant time
his Advocate called him several times, but he failed to give instructions
to file written statement. As the defendants failed to file written
statement, therefore, the court has passed No.W.S. order against
defendant Nos. 2 and.3. It is further contended that the plaintiff has
filed a suit for decree and possession of suit premises viz: Room No.B,
Mohd. Rafiq Nagar, Shivaji Nagar, Govandi, Mumbai, therefore the
defendant deserves to be permitted to defend the defence and prayed
for setting aside the No.W.S. order, with condonation of delay.
3. The plaintiff resisted the contention by filing reply
contending that no sufficient reason is given. The defendants have
deliberately avoided to appear before the court and prayed for dismissal
of notice of motion.
4. Heard rival parties at length.
5. It reveals from the affidavit of defendant No.2 that his
father was ill, who was at native place and he was required to go to his
native place to take his care and during the said period his Advocate
called him several times, but he failed to give instructions to file written
statement. Because of his genuine difficulty he was unable to appear
before the court and the No.W.S. order was passed against them.
Therefore defendants deserves to be given an opportunity to raise
defence in all fairness.
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6. It is to note that, inspite of sufficient opportunities
defendants failed to file written statement and therefore on
20/04/2018 and hence No.W.S. order was passed against the defendant
Nos. 2 and 3, thus delay is caused in filing of written statement.
7. I am fortified by the judgment passed by the Hon'ble Supreme
Court in a case of “Zolba V/s. Keshao & Others reported in (2008) 11 Supreme
Court Cases 769, wherein it is opined by the Hon'ble Supreme Court that, “The
provisions of Order8 Rule1 of CPC, or any procedural enactment should not be
construed in a manner, which would leave the Court helpless to meet
extraordinary situations in the ends of justice”. In the cited case, the Hon'ble
Apex Court has pleased to opined that delay in filing Written Statement may be
condoned on showing sufficient cause.
8. In a case of, “Rekha Baburao Parmale & Others V/s.
Vishwabhushan Shrikant @ Annaso Patil & Others, reported in 2018
SCC online Bom 8790, the Hon'ble Bombay High Court has pleased to
allow to file Written Statement even it is found that no proper reason were
assigned by the defendants therein, observing that the suit is for recovery of
possession of the property and the defendants are required to give an
opportunity to defend their case in all fairness.
9. Therefore, I am of the view that an opportunity should be
given to the defendants to defend the claim of the plaintiff. However, so far
as the delay caused in applying the motion is concerned, I am of the view
that it may be condoned subject to cost. Hence, I proceed to pass the
following order :
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ORDER
1. Notice of Motion No.2615 of 2019 in Suit No.2028 of
2017, is allowed.
2. Order passed by this court dated 20/04/2018 stands set
aside, subject to cost of Rs.2,000/.
3. Delay stands condoned.
4. Notice of Motion is disposed off accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 01/04/2023 C.R. No.03, Gr. Mumbai
Dictated on : 01/04/2023
Typed on : 01/04/2023
Signed on : 01/04/2023
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“Certified to be true and correct copy of the original signed order”.
03/04/2023
at about p.m.
(Dastagir Babalal Mulla)
Stenographer GradeI (Gazetted)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of
Order
: 01/04/2023
Order signed by Hon'ble Judge
on
: 01/04/2023
Order uploaded on : 03/04/2023
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