Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2681/19(Suit 2077/18)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.2681/2019
(CNR No.MHCC01-007338-2019)
IN
S.C. SUIT NO.2077/2018
Bhagwan Hari Poshak ..Plaintiff.
V/s.
Mrs. Kalyani Balkrishna Kalmundkar ..Defendant
Appearance:
Adv. Mr. Khobragade for plaintiff.
Adv. Mr. R.K. Mishra for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 3.12.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by defendant
praying for condonation of delay of 85 days in filing WS and it is further
prayed that the order passed by this court dated 12.4.2019 'to proceed
with the suit without WS' may be set aside. The Motion is supported by
an affidavit of defendant Mrs. Kalyani Balkrishna Kalmundkar and
certificate of doctor from Dhanwantari Hospital & Research Centre
dated 20.3.2019. I have perused the same.
2. Plaintiff has opposed the Motion by filing reply, duly
verified by the plaintiff. I have gone through the same.
3. I have heard Ld.Counsel for the defendant and Ld. Counsel
for the plaintiff.
4. It is submitted on behalf of the defendant that, the
defendant is a widow and illiterate person, suffering from various age
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related ailments. On 5.4.2019, she came to know about filing of present
suit by the plaintiff when some unknown person came to the suit
premises and thrown some papers at her resident. As defendant was
illiterate, she was unable to read contents and understand the matter.
Therefore, she approached one Adv. Mr. Sachin Desai. He explained
that, she will have to engage an advocate and file WS in the court. She
engaged Mr. Sachin Desai as her advocate to represent her case before
the court.
5. It is further submitted that, in the meanwhile, the
defendant was suffering from back pain and had to consult a doctor.
Therefore, should could not contact her advocate. She was under
treatment of doctor at Dhanwantari Hospital & Research Centre, Dadar.
The doctor had advised her to take rest from 20.3.2019 to 19.6.2019,
vide medical certificate filed on record (Annexure1).
6. It is further submitted that, the defendant had approached
her advocate and asked him to file the WS in the court. Her advocate
denied and refused to do needful. He also refused to return the fees
paid to him. Therefore, the defendant had to struggle to arrange for
fees again and engage another advocate. This has resulted in delay in
filing the WS. Hence, the delay of 85 days is liable to be condoned in
the interest of justice.
7. If the delay is not condoned, the defendant will suffer
irreparable loss and the case before the court would be decided against
her without getting opportunity to be heard. Hence, it is prayed that
lenient view should be taken in the matter and the delay be condoned.
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8. Ld Counsel for the plaintiff has strongly opposed the
Motion and submitted that, Hon'ble Apex Court has held in the case of
Kailash V/s. Nanhku and Ors. ((2005) 4 SCC 480) that provisions
Order 8 Rules 1 and 10 are directory in nature. Any delay after
statutory period of 30 days has to be properly explained by defendant
and court should be satisfied about the reasons stated by the defendant
for condoning the delay after a period of 90 days. The extension of time
sought for by the defendant from the court after 30 days but before 90
days, as the case may be, should not be granted just as a matter of
routine and merely for asking, more so, when the period of 90 days has
expired. In this case, it is held that, every delay beyond 90 days period
is required to be properly explained and strict view should be taken by
the court.
9. Considering the above ratio of the decision of the Hon'ble
Apex Court, Ld. Counsel for the plaintiff submitted that, the delay in the
present case cannot be condoned because it is not properly explained
and reasons given by the defendant cannot be said to be just and
proper. Hence, Motion is liable to be dismissed.
10. I have gone through the Motion and reply filed on behalf of
the plaintiff. I have also taken into consideration oral submissions made
by Ld. Counsels for both sides. I have also perused medical certificate
issued by doctor of Dhanwantari Hospital & Research Centre dated
20.3.2019 in favour of the defendant, observing that the defendant Mrs.
Kalyani Balkrishna Kalmundkar was under his treatment for 'traumatic
injury leading to lumbar pain suggestive of Grade I Centerolistnebis Ls
S vertebra'. Doctors had advised the defendant to take bedrest for a
period of three months i.e. from 20.3.2019 to 19.6.2019.
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11. Considering the above medical certificate on record and
submissions made by Ld. Counsel for the defendant, it can be seen that,
the defendant has taken out this Motion on 17.7.2019 at the earliest
possible opportunity, after she recovered from the back pain ailment.
Under the above circumstances, I find that, the reasons given by the
defendant for condoning the delay in filing the WS appears to be
justified, as the defendant was suffering from back pain and was under
treatment. In view of above, the ratio in the case of Kailash V/s.
Nanhku and Ors. (supra), under the above circumstances, will not
come in the way of condoning the delay of 85 days. Therefore, I am of
the opinion that, the Motion deserves to be allowed in the interest of
justice. Hence, I proceed to pass following order:
ORDER
Notice of Motion No. 2681/2019 is hereby allowed and made
absolute in following terms
1. The delay of 85 days in filing WS is hereby condoned subject
to defendant paying costs of Rs. 2000/ to the
plaintiff/depositing the same in the court within a period of
three weeks from today.
2. If the above order and directions are complied by defendant
within time then the order passed by this court dated
12.04.2019 to proceed with the suit without WS on record
shall stands set aside and WS of the defendant can be taken on
record.
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Matter may be kept for compliance on next date.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 3.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 3.12.2019
Typed on : 4.12.2019
Draft given on : 4.12.2019
Signed by HHJ on : 5.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 6.12.19
TIME: 12.04 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 3.12.19
Judgment/ order signed by P.O on 5.12.19
Judgment/ order uploaded on 6.12.19
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