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.2336 OF 2018
IN
S.C. SUIT NO.733 OF 2015
CNR NO.MHCCO10075782018
Pramod Kantilal Sagar ..Plaintiff
V/s
1.Pralhad son of late Manohardas Mooldas
Sharma and ors ..Defendants
Ld. advocate Achala Hatode for the plaintiff
Ld. advocate Redekar for defendant no.5
Ld. advocate D.D.Jani for defendant no.6
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 12/07/2019
ORAL ORDER
1. This notice of motion is tendered by defendant no.6
interalia for condonation of delay in filing the written
statement and recalling the order dated 18/12/2017.
2. Heard. Perused the record.
3. Ld. Counsel for defendant no.6 submitted that case
against him proceeded exparte on the basis of postal
acknowledgement that defendant no.6 though
intimated, did not receive the amended copy of
plaint and therefore suit was proceeded exparte. He
would submit that no writ of summons was served
upon him. Defendant no.6 submitted that after
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approaching the advocate in January2018 and after
applying the entire certified copy of the roznama, he
got aware of the present proceedings. As he was
suffering from neck pain since January, 2018, he
could neither attended his office nor the office of
advocate. He has documents to support the same.
Hence, the present notice of motion is filed to
condone the delay in filing written statement.
4. The notice of motion is opposed on the ground that
defendant no.6 was duly served with plaint by the
advocate for the plaintiff. The defendant despite
service failed to file Written statement. The
defendant has not demonstrated sufficient cause for
condoning the delay.
5. On perusal of the record it appears that Court
proceeded exparte against defendant no.6 on the
basis of postal acknowledgment which was not
claimed by defendant no.6. Besides this, there is
nothing to show the proof of service of writ of
summons. The endorsement 'unclaimed' cannot be
said to be deemed service u/s. 27 of the General
Clause Act. It is apparent that there is no proper
service to defendant no.6.
6. Be that as it may be, the Court should not adopt
hyper technical and pedantic approach in dealing
with such type of petition. This Court is first fact
finding Court. In the interest of justice, this notice of
motion needs consideration. No prejudice would be
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caused if defendant no.6 if written statement is taken
on record. Hence, it is expedient to pass following
order:
ORDER
1.Notice of Motion No.2366/2018 is allowed in terms
of prayer clause (a) to (c) subject to costs of
Rs.1000/ to be payable to the plaintiffs or their
counsel within a period of two weeks from today.
2. Payment of costs is subject precedent.
3. Notice of motion is accordingly disposed off.
12/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 12/07/2019
Transcribed on : 15/07/2019
Signed on : 19/07/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
19/07/19 at 1.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
12/07/2019
Judgment and order signed by P.O. 19/07/2019
Judgment/order uploaded on 19/07/2019
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