Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2654 OF 2019
IN
S.C. SUIT NO.9880 OF 1987
CNR NO.MHCCO1000072752019
1. Bansilal Bhonwarilal Chaplot & Ors ]...Applicants.
Mahendra Janardhan Velinkar ]..Plaintiff
V/s
1(a) Sharad Balchandra Kulkarni & Ors. ]..Defendants
Ld. Adv. Vinayak Tare for plaintiff.
Adv. Sanjay Kapadia for deft. nos. 2(a) and 2(b).
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 29th July, 2019
ORAL ORDER
1. The Notice of Motion is tendered by defendant No.5
and 6 for setting aside the exparte order against
them and further to seek order to condone the delay
in filing this application for setting aside the order
dated 21.6.2018.
2. It is the contention that these defendants on or about
15.10.2015 the writ of summons was served and
same was received by defendant No.6 who is a house
wife. She did not understand the gravity of the case
papers served upon her. She did not disclose about
the said papers to defendant No.5. Thereafter as per
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Court Proceedings this Court passed an order to
proceed exparte against these defendants on
21.6.2018. The defendants received letter dated
26.2.2019 of the advocate of the plaintiffs in respect
of Notice of Motion No.506 of 2019 and were not
aware about the proceedings. Hence, defendants has
filed this Notice of Motion to submit that the delay is
unintentional and without any malafide intention.
3. The Notice of Motion is opposed by the plaintiff on
the count that the writ of summons was served upon
the defendant on 15.10.2015 but they failed to
appear before the Court and has not filed written
statement. During the pendency of the suit defendant
No.1 expired and his legal heirs were brought on
record. At that time also the defendant No.5 and 6
did not attend the Court this aspect shows the
malafide of the defendants. The Notice of Motion is
taken out by the defendants is false and frivolous.
The defendants deliberately did not attend the Court.
The defendant nos.5 and 6 were instigated by
defendant nos.1 to 4 to move the Court to delay the
trial. The notice of motion needs no consideration,
hence the same be rejected.
4. On perusal of the submissions made by the defendant
Nos.5 and 6 they were served with the writ of
Summons but they did not attend the Court.
Consequently, matter was proceeded exparte against
them. The Learned Counsel for the plaintiff argued
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that the defendant No.5 and 6 have not shown
sufficient cause for delay. The negligence and
lethargy approach of the defendants could not be
ignored. In support of his contention he placed
reliance upon the judgment of Maniben Devraj Shah
V/s Municipal Corporation of Brihan Mumbai of
Hon'ble Apex Court, (2012) 5 Supreme Court
Cases 157 and Balwant Singh Vs. Jagdish Singh
and others of Hon'ble Apex Court in Civil Appeal
No. 1166/2006 decided on 8.7.2010.
5. I had considered the law laid down in the above cited
Judgments. The Hon'ble Apex Court in the case of
Maniben(supra) held that
“'The expression 'sufficient cause' used in Section 5 of
the Limitation Act, 1963 and other statutes is elastic
enough to enable the courts to apply the law in a
meaningful manner which serves the ends of justice.
No hardandfast rule has been or can be laid down for
deciding the applications for condonation of delay but
over the years this Court has advocated that a liberal
approach should be adopted in such matters so that
substantive rights of the parties are not defeated merely
because of delay.”
6. On perusal of the record it appears that the plaintiff
has filed the evidence of examination in chief. He
has tendered the evidence of affidavit on 21.6.2018.
The cross examination of the plaintiff has not been
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started. This Court is a trial Court. If all the issues
and rights of all the parties are decided in a suit then
it would curb multiplicity of the proceedings and
future complications. The defendant no.5 and 6
have made out sufficient cause. They bonafidely
submitted of receipt of writ of summons but dut to
unawareness of defendant no.6 being housewife
these defendants could not appear in the matter. If
these defendants are permitted to participate in the
proceedings, no prejudice would be caused to the
plaintiff when in the matter cross examination of
plaintiff is not yet started. The substantial right of
the parties cannot be overlooked. The Court should
not adopt hypertechnical and pedantic approach in
such type of petition. In the interest of justice, notice
of motion needs consideration. Hence, it is expedient
to pass following order:
ORDER
1. Notice of Motion No. 2654/2019 is allowed in terms
of prayer clause (a) to (c) subject to cost of Rs. 10,000/
to be paid to the plaintiff within 10 days.
2. Payment of cost is subject precedent.
3. Notice of Motion is disposed of accordingly.
29/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 29/07/2019
Transcribed on : 17/08/2019
Signed on : 19/09/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
19/09/19 at 4.00 pm.
Mrs.V.V.Pawar
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
29/07/2019
Judgment and order signed by P.O. 17/09/2019
Judgment/order uploaded on 19/09/2019
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