Date: 25-07-2019
Business: Adv. Puranik for Plaintiff present.
Adv. Rajapurkar for defendant no.4 present.
Reply filed by defendant no.4 to NM t.o.r.
Adv for Plaintiff sought time for service of NM upon defendant nos.1 to 3.
Time is granted for service upon defendant nos.1 to 3.
Adj for service to 21.08.2019.
Next Purpose: SERVICE
Next Hearing Date: 21-08-2019
Date: 21-08-2019
Business: Adv. Vaiti for Plaintiff present.
Adv. Rajapurkar for defendant no.4 present.
Defendant no.1 present.
Defendant no.1 sought time to file reply.
Time is granted.
Adv for Plaintiff submitted that summons has already been served upon defendant nos.3 and 5.
Plaintiff is directed to file affidavit of service relating to them.
Plaintiff is directed to take steps for service of writ of summons and NM upon defendant no.2 as per provisions of O 5 Rule 21 of CPC.
Adj for reply and service report to 09.10.2019.
Next Purpose: SERVICE
Next Hearing Date: 09-10-2019
Date: 09-10-2019
Business: Adv. S. V. Shinde for plaintiff present.
Adv. Rajapurkar for defendant No.4 present and tendered draft notice of motion.
O- Leave is granted to register it.
Adv. Ashish Dubey appeared for defendant No.1 and filed V/N t.o.r. and marked as Exh.3.
Adv. Ashish Dubey also appeared for defendant No.1 an undertake to filed V/n on behalf of defendant No.2
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Copy of draft notice of motion is served on other side.
Reply filed by plaintiff on draft notice of motion itself.
Advocate for plaintiff tendered original Notice of Motion No.2724 of 2019 and joint affidavit of service.
Heard both sides on draft notice of motion.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Perused draft notice of motion, affidavit in support of it and reply of plaintiff. Heard respective counsel for parties.
Draft notice of motion is taken out by defendant No.4 to condone delay caused in filing written statement. It is contended that delay was caused as defendant No.4 was out of India owing to her occupational requirement and was not available to affirm written statement and delay has been caused in filing her written statement. Accordingly, she made prayer in above terms.
Plaintiff has left it to the discretion of Court and requested to impose costs in case notice of motion is allowed.
It is a settled law that Order VIII Rule 1 of CPC is not mandatory and in specific circumstances written statement can be accepted with reasons. It is also held that in an adversarial system, no party should be denied an opportunity in participation of the justice dispensation system (Salem Bar Association V/s Union of India 2003 AIR SCC 189 and Zolba V/s Keshav 2008 AIR SCC 2099). In view of this legal position, now, I consider notice of motion.
Defendant No.4 has given reason that she was out of India owing to her occupational requirement and was not available to affirm written statement and delay has been caused in filing her written statement.. Reason assigned by her is sufficient to condone delay caused in filing written statement. Delay caused is not inordinate and it cannot be termed as deliberate. More so, defendant No.4 has shown her bona fide by annexing written statement along with notice of motion. In above facts and circumstances I am inclined to allow draft notice of motion in the interest of justice and fair trial with certain costs. Hence, passing following order
ORDER
1. Draft notice of motion is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.1000/- to plaintiff within period of one week from the date of this order.
Defendant is at liberty to deposit costs payable to plaintiff in the Court.
2. On payment of costs written statement of defendant No.4 be taken on record and marked exhibit.
3. Draft notice of motion be registered for statistical purpose.
4. Accordingly, draft notice of motion is disposed off.
Defendant No.4 paid costs to plaintiff.
Exh.4 Written statement filed by defendant No.4.
Copy is given to other side.
Adjd. For NM reply of rest of defendants to 08.11.2019.
Next Purpose: REPLY
Next Hearing Date: 08-11-2019
Date: 08-11-2019
Business: Adv. Kavita Ghadage for plaintiff present.
Adv. Ashish Dubey for Defendant no 1 present
Adv. Rajapurkar for defendant no 4 present.
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Same appearance.
Draft notice of motion filed by advocate for defendant No.1
O - Leave is granted to register it.
Copy is served upon plaintiff.
Say filed by plaintiff.
Heard both sides.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Perused draft notice of motion, affidavit in support of it and reply of plaintiff. Heard learned counsel for both parties.
Draft notice of motion is taken out by defendant No.1 to condone delay caused in filing written statement and to take the same on record. It is the contention of defendant No.1 that husband of defendant No.1 received notice but he was unwell and due to inadvertence he failed to inform about the notice. After getting knowledge of receipt of notice defendant No.1 appeared in the Court on 21.08.2019 and matter was adjourned for filing reply to 09.10.2019. In first week of October, 2019 defendant No.1 approached to her advocate and given instruction for drafting written statement. On 09.10.2019 her advocate tendered written statement but it was not taken not record as there was delay in filing of written statement. In above circumstances defendant No.1 prayed in above terms.
Plaintiff opposed notice of motion and prayed to dismiss the same.
Before adverting to the facts I would like to mention that it is a settled law that Order VIII Rule 1 of CPC is not mandatory and in specific circumstances written statement can be accepted with reasons. It is also held that in an adversarial system, no party should be denied an opportunity in participation of the justice dispensation system (Salem Bar Association V/s Union of India 2003 AIR SCC 189 and Zolba V/s Keshav 2008 AIR SCC 2099). In view of this legal position, now, I consider notice of motion.
In present matter defendant No.1 appeared on 21.08.2019 but she was not represented by her advocate. Matter was adjourned to 09.10.2019 for reply and service of other defendants. From written statement annexed to draft notice of motion it is clear that defendant No.1 has affirmed it on 09.10.2019. This fact itself demonstrate that defendant No.1 does not want to protract trial. It shows bona-fide on her part. Reason assigned by her is sufficient to condone delay caused in filing written statement. More so, delay caused is not inordinate and deliberate. Therefore, in the interest of justice and fair trial I am inclined to allow draft notice of motion with certain costs. Hence, pass following order
ORDER
1. Draft notice of motion is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.1000/- (Rupees One Thousand only) to the plaintiff within period of one week from the date of this order.
Defendant No.1 is at liberty to deposit the costs payable to plaintiff in the Court.
2. On payment of costs written statement of defendant No.1 be taken on record and marked exhibit.
3. Draft notice of motion be registered for statistical purpose.
4. Accordingly, Draft notice of motion is disposed off.
Defendant No.1 paid costs of Rs.1000/- to plaintiff.
Plaintiff has acknowledged the receipt of costs of Rs.1000/-.
Exh.5 Written statement of defendant No.1
Pursis filed by advocate for defendant No.1 adopting written statement as reply to notice of motion No.2724 of 2019 It is accepted.
Matter is adjourned for direction to 13.12.2019.
Next Purpose: DIRECTIONS
Next Hearing Date: 13-12-2019
Date: 13-12-2019
Business: Adv. Shindef for plaintiff present.
Adv. Goyal for defendant no 4 present.
Adv. Ashish Dubey for defendant no 1 present.
Despite service of NM upon defendant no 5, none appeared on behalf of defendant no 5. so notice of motion is to proceed exparte against defendant no 5.
Plaintiff is directed to take steps for service of Writ of summons and NM upon defendant no 3.
Plaintiff is also directed to served Writ of summons upon defendant no 5.
Adv. Ashish Dubey appeared on behalf of defendant no 2 and filed V/N t.o.r. Exh.5
He tendered draft NM t.o.r.
O- Leave granted to register it.
Copy given to plaintiff.
He also annexed W/s to draft NM.
Say filed by plaintiff on draft NM itself.
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Heard both sides.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Perused draft notice of motion, affidavit in support of it and reply of plaintiff. Heard respective counsel for parties.
Draft notice of motion is taken out by defendant No.2 to condone delay caused in filing written statement and to take the same on record. She assigned reason that as her husband was suffering from cancer since November, 2018 and he underwent major operation and undergoing Chemo - Therapy session so she has to take care of her husband. Because of that she could not remain present before this court nor depute anyone to make any representation on her behalf.
Plaintiff objected to the notice of motion.
Before adverting to the facts I would like to mention that it is a settled law that Order VIII Rule 1 of CPC is not mandatory and in specific circumstances written statement can be accepted with reasons. It is also held that in an adversarial system, no party should be denied an opportunity in participation of the justice dispensation system (Salem Bar Association V/s Union of India 2003 AIR SCC 189 and Zolba V/s Keshav 2008 AIR SCC 2099). In view of this legal position, now, I consider notice of motion.
Defendant No.2 assigned reason on solemn affirmation. There is no reason to disbelieve her contention in that regard. More so, delay caused cannot be said to be deliberate and intentional. Further, defendant No.2 has annexed written statement along with draft notice of motion which shows bonafide on her part and that she does not want to delay the trial. Considering the above facts, in the interest of justice and equity I am inclined to allow present draft notice of motion subject to imposition of costs upon defendant No.2. Hence, pass following order.
ORDER
1. Draft Notice of Motion is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.2000/- to the plaintiff within period of two weeks from the date of this Order.
Defendant No.2 is at liberty to deposit costs payable to the plaintiff in the Court.
2. On payment of costs, written statement of defendant No.2 be taken on record and marked exhibit.
3. Draft notice of motion be registered for statistical purpose.
4. Accordingly, draft notice of motion is disposed off.
Defendant No.2 paid the costs of Rs.2000/- to advocate for plaintiff who accepted costs of behalf of plaintiff.
Ex.6 Written statement of defendant No.2.
Defendant No.2 filed pursis to treat written statement as reply to notice of motion No.2724 of 2019.
Adjourned for service of defendant No.3 to 24.01.2010
Next Purpose: SERVICE
Next Hearing Date: 24-01-2020
Date: 24-01-2020
Business: Adv. Kavita Ghadi for plaintiff present.
Adv. Rajapurkar for defendant No. 4 present.
Now, Adv. S.D.Shinde for plaintiff present.
Plaintiff tendered registered NM 2724/19 t.o.r.
Notice of Motion is duly served upon defendant No. 3 and 5.
Defendant No. 3 is absent and None appeared on behalf of defendant No. 5
Exh.7 Plaintiff also filed Writ of summons t.o.r.
Writ of summons is duly served upon defendant No. 3 and 5.
Adjourned for direction to 18.02.2020
Next Purpose: DIRECTIONS
Next Hearing Date: 18-02-2020
Date: 18-02-2020
Business: Adv Kavita Ghadi for plff present.
Adv Rajapurkar for deft no. 4 present.
Adv Mohsin Panjwani for deft no. 1 and 2 present.
Adv Devdatta Dalvi for deft no. 5 present.
He filed VP for deft no. 5. t.o.r. Marked as Exh. 08.
He filed reply to NM 2724/2019. t.o.r.
Deft no. 3 is duly served. Hence, NM is proceeded without reply against deft no. 3.
Matter stands Adj for NM hearing to 13/03/2020.
Next Purpose: NM FOR HEARING
Next Hearing Date: 13-03-2020
Date: 13-03-2020
Business: Adv S. D. Shinde for plff present.
He seeks time to file NM reply. Granted.
Adv Ashish Dube for deft no. 1 and 2 present.
Adv Rajapurkar for deft no. 4 present.
Adv Devdatta Dalvi for deft no. 5 present.
He is directed to tendered register NM 2724/2019.
Matter stands Adj for NM reply to 27/03/2020.
Next Purpose: REPLY
Next Hearing Date: 27-03-2020
Date: 27-03-2020
Business: adjourned
Next Purpose: REPLY
Next Hearing Date: 08-04-2020
Date: 27-03-2020
Business: adjourned
Next Purpose: REPLY
Next Hearing Date: 08-04-2020
Date: 27-03-2020
Business: adjourned
Next Purpose: REPLY
Next Hearing Date: 08-04-2020
Date: 08-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: REPLY
Next Hearing Date: 20-04-2020
Date: 08-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: REPLY
Next Hearing Date: 20-04-2020
Date: 08-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: REPLY
Next Hearing Date: 20-04-2020
Date: 20-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: REPLY
Next Hearing Date: 30-05-2020
Date: 20-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: REPLY
Next Hearing Date: 30-05-2020
Date: 20-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: REPLY
Next Hearing Date: 30-05-2020
Date: 30-05-2020
Business: National Lockdown
Next Purpose: REPLY
Next Hearing Date: 17-06-2020
Date: 30-05-2020
Business: National Lockdown
Next Purpose: REPLY
Next Hearing Date: 17-06-2020
Date: 30-05-2020
Business: National Lockdown
Next Purpose: REPLY
Next Hearing Date: 17-06-2020
Date: 17-06-2020
Next Purpose: REPLY
Next Hearing Date: 02-09-2020
Date: 02-09-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: REPLY
Next Hearing Date: 16-10-2020
Date: 16-10-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: REPLY
Next Hearing Date: 10-12-2020
Date: 10-12-2020
Business: Adv Jitesh Goel for deft no. 4 present.
Matter stands Adj for reply to 09/02/2021.
Next Purpose: REPLY
Next Hearing Date: 09-02-2021
Date: 09-02-2021
Business: Adv S. D. Shinde for plff present.
Adv Rajapurkar for deft no. 4 present.
Adv Devdatta Dalvi for deft no. 5 present.
He requested date to file NM reply. Granted as last chance.
Matter stands Adj for NM Reply to 09/03/2021.
Next Purpose: REPLY
Next Hearing Date: 09-03-2021
Date: 09-03-2021
Business: Adv. S. D. Shinde for plaintiff present.
Adv. Jitesh Goyal for defendant no.4 present.
Adv. Devdatta Dalavi for defendant no.5 present.
Defendant no.5 registered NM 1119/2020.
Adv. for plaintiff filed reply on NM 1119/2020 itself.
Heard both parties. NM is for condonation of 25 days delay in filing WS of defendant no.5 on the record.
Advocate for plaintiff formally opposed the NM and prayed for cost. It appears that Defendant no.5 is the society. Advocate for defendant no.5 submitted that meetings was not conducted of defendant no.5 society. Considering the reasons mentioned in the NM and small period of delay, NM No. 1119/2020 is allowed and disposed of. No order as to costs.
Defendant no.5 filed written statement. t.o.r. and marked as Exh. 09.
Matter stands Adj to 03/04/2021 for hearing on NM.
Next Purpose: REPLY
Next Hearing Date: 03-04-2021
Date: 03-04-2021
Business: PO is on leave.
Next Purpose: REPLY
Next Hearing Date: 30-04-2021
Date: 03-04-2021
Business: PO is on leave.
Next Purpose: REPLY
Next Hearing Date: 30-04-2021
Date: 30-04-2021
Business: Due to Covid-19 matter adjd
Next Purpose: REPLY
Next Hearing Date: 10-07-2021
Date: 30-04-2021
Business: Due to Covid-19 matter adjd
Next Purpose: REPLY
Next Hearing Date: 10-07-2021
Date: 10-07-2021
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: REPLY
Next Hearing Date: 28-08-2021
Date: 28-08-2021
Business: Adv S. D. Shinde for plff present.
None for deft.
Matter stands Adj for NM Hearing to 04/10/2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 04-10-2021
Date: 04-10-2021
Business: Adv S.D.Shinde for plaintiff present.
None for defendant.
As Court is busy in dictating order in Notice of Motion, hence board discharged and adjd. for NM Hearing to 08.12.2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 08-12-2021
Date: 04-10-2021
Business: Adv S.D.Shinde for plaintiff present.
None for defendant.
As Court is busy in dictating order in Notice of Motion, hence board discharged and adjd. for NM Hearing to 08.12.2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 08-12-2021
Date: 08-12-2021
Business: Adv Krunali for plff present.
She seeks time for NM Hearing. Granted.
Adv Dravya Pravin for deft no. 4 present.
Matter stands Adj for NM Hearing to 10/02/2022.
Next Purpose: NM FOR HEARING
Next Hearing Date: 10-02-2022
Date: 10-02-2022
Business: Due to Covid-19, matter is adjd to
Next Purpose: NM FOR HEARING
Next Hearing Date: 31-03-2022
Date: 31-03-2022
Business: P. O. is on Leave.
Next Purpose: NM FOR HEARING
Next Hearing Date: 15-06-2022
Date: 15-06-2022
Business: Adv. S. G. Shinde for plaintiff present.
Adv. Mohasingh Pejwani for defendant present.
He seek time for hearing. Time granted.
Matter is adjd for hearing on n/m as last chance to 26/07/2022.
Next Purpose: NM FOR HEARING
Next Hearing Date: 26-07-2022
Date: 26-07-2022
Business: Adv. Shinde for plaintiff present.
None for defendant.
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FRSR following order is passed
Order -
1) N/M No. 2724 of 2019 is hereby allowed.
2) The defendant\''s are hereby restrained from creating third party interest in the suit premises by way of sale, mortgage, etc. till the decision of suit.
3) Notice of motion no. 2724 of 2019 is disposed of with no order as to costs.
Nature Of Disposal: ALLOWED
Disposal Date: 26-07-2022