Interim Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.819 OF 2019
IN
S.C.SUIT NO.1762 OF 2018
Mr.Manharlal Maganlal Badiani ... Plaintiff
Versus
1. Mr.Rishab Prashmesh Barar,
2. Mrs.Dhanashree Khade Nee Barar ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 24th SEPTEMBER, 2019
Ld.Counsel Mr.B.M.Kantawala with Adv.Vyas, ld.advs. for plaintiff.
Ld.Adv.Kunal Vaishav, for defendant no.1.
Ld.Adv.Prasad Apte, for defendant no.2.
O R D E R
1. This notice of motion is taken out by defendant no.2 for
condoning the delay of 222 days for filing the written statement in the
suit. Defendant no.2 Mrs.Dhanashree Khade Nee Barar has filed the
affidavit in support of notice of motion contending that notice of motion
no.2568 of 2018 is taken out by plaintiff and therefore, defendant no.2
is conversant with the fact of the case. She has contended that on
17/12/2018 no W.S. order was passed against defendant no.2 and
therefore she has taken out this notice of motion for setting aside no
W.S. order and for accepting her W.S. by condoning delay of 222 days
caused for filing it. It is contended that on 21/06/2018, father of
defendant no.2 received a phone call from the advocate on record,
however that time defendant no.2 was at her relative's house at Malad
and her father made contact with one advocate Ms.Devika Deshmukh
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and requested her to appear in the Court on 22/06/2018 on behalf of
defendant no.2. Accordingly, said advocate Mrs.Devika Deshmukh
appeared in the Court and accepted service of plaint along with notice
of motion in the Court on said date. Said advocate waived service of
writ of summons and defendant no.2 was not made aware about it.
Therefore, defendant no.2 has decided to change her advocate and
appointed present advocate on record. Meanwhile, defendant no.2 is
served with copy of plaint along with notice of motion filed in suit
no.1735/2018 against defendant no.2 in Dindoshi Court. Defendant
no.2 has appointed another advocate on her behalf in said Court and it
is contended that it was difficult for defendant no.2 to manage two
matters at once and to arrange payment of fees of two advocates and to
give instructions to both the advocates. According to defendant no.2,
she suffered from mental stress and therefore she could not manage
above things. Further on 03/08/2018 defendant no.2 has received
divorce notice from defendant no.1 and she was required to face all
above proceedings even though she is out of matrimonial home since
15/05/2018 and even though she is residing with her parents. It is
contended that defendant no.2 has also lost her job in July,2018.
2. According to defendant no.2, for all above reasons she has
become completely helpless and she was not intending to put her
burden on her parents in respect of legal proceedings, to which she is
required to face. Therefore, according to defendant no.2 the delay of
222 days is cased in taking out this notice of motion.
3. Plaintiff Mr.Manoharlal Badiani has resisted the notice of
motion by filing reply contending that he has filed this suit and served
copy of the plaint upon defendant along with notice of motion and
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affidavit filed in its support. It is contended that advocate Ms.Devika
Deshmukh appeared in the Court on behalf of defendant no.2 waived
the service of writ of summons. It is contended that the male advocate
who was appearing with Ms.Devika Deshmukh should have supported
the contentions raised by defendant no.2 by filing his affidavit. It is
alleged that the decision of changing the advocate is a convenient
measure to blame advocate so as to get out and wriggle out from a
statutory compliance. It is contended that plaintiff is of 90 years old and
therefore, delay in the matter is beneficial to defendant no.2. It is
contended that defendant no.2 has not given proper reason to change
her previous lawyer. It is denied that defendant no.2 is unable to
manage the advocate’s fees for the legal proceedings referred in the
affidavit filed by defendant no.2 in support of her notice of motion. It is
contended that defendant no.2 if is not residing at Colaba premises
question arises that from which sources she manages license fess for
separate residence. It is contended that since January, 2019 defendant
no.2 is bearing her share for said license fees therefore, according to
plaintiff it cannot be believed that defendant no.2 was able to manage
advocate’s fee for various litigation. It is denied that defendant was not
negligent for causing the delay in respect of filing her written
statement.
4. Heard Advocate Mr.Prasad Apate for defendant no.2 and
advocate Mr.Kantawala for plaintiff. I have given my attention to the
contentions raised by the parties in their affidavits. It is admitted fact
that 222 days delay is caused in taking out this notice of motion for
setting aside no WS order passed against defendant no.2. It is also
admitted fact that matrimonial disputes are going on between
defendant no.1 and grandson of plaintiff and defendant no.2. Any how,
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defendant no.2 is intending to contest this suit by filing her written
statement and it is always better for plaintiff to get the decree on merits
if at all, plaintiff has true and forceful case according to law.
Considering nature of dispute between the parties and considering the
fact that defendant no.2 is required to reside with her parents I find that
defendant no.2 has made out reasonable ground to condone the delay
caused for filing this notice of motion. At the same time, I find that
plaintiff who is of 90 years is required to wait for decision of notice of
motion no.2565 of 2018 due to the delay on the part of defendant no.2
in respect of appointment of new advocate and for want of detail
pleadings, hence I find that defendant no.2 should pay cost of
Rs.2,200/ to plaintiff for condoning the delay caused in taking out this
notice of motion. Hence, I proceed to pass the following order.
O R D E R
1. Notice of Motion no.819 of 2019 is made absolute, subject to cost
of Rs.2,200/ to be paid by Defendant no.2 to Plaintiff.
2. It is made clear that no Written Statement order passed against
Defendant no.2 will be set aside after depositing said cost amount
by Defendant no.2 in court or on paying said cost amount by
Defendant no.2 to Plaintiff and thereafter Written Statement of
Defendant no.2 will be accepted.
Sd/
(K.P.NANDEDKAR)
24/09/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 24/09/2019
Transcribed on : 30/09/2019
Signed by HHJ on : 22/10/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22/10/2019 5.25PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 24/09/2019
Judgment/order signed by P.O on 22/10/2019
Judgment/order uploaded on 22/10/2019
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