Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2856-19 in S.C. Suit No.1904 of 2014
1 Date : 22.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2856 OF 2019
IN
S.C.SUIT NO.1904 OF 2014
(CNR NO.MHCC010078822019)
Mr. Vijay Vitthal Kavle ..Plaintiff
Versus
Rajendra Vitthal Kavle & Ors. .. Defendants
Appearances :
Adv.Khatu for plaintiff present.
Adv.S.S. Dube for defendant no.1 present.
Adv.Vinaya Shetye for defendant no.2 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 22.08.2019
ORDER
1. The defendant no. 2 has filed instant Notice of Motion for
adopting and treating the affidavit in reply of defendant no. 2 filed
to the Notice of Motion No. 2547 of 2014 as his Written Statement
to the suit.
2. It is contended by the defendant no. 2 that the plaintiff filed
suit for declaration that he is having 1/5th share in he suit
property. The plaintiff filed Notice of Motion No. 2547 of 2014 for
grant of interim and Adinterim relief. It is submitted by the
defendant no. 2 that he has been served with the Notice of Motion.
-- 1 of 4 --
NM 2856-19 in S.C. Suit No.1904 of 2014
2 Date : 22.08.2019
He has filed reply to the Notice of Motion on 05.05.2015 but, he
was not received with Writ of Summons till date.
3. It is further contended by the defendant no. 2 that the
plaintiff failed to satisfy the Court that he has served the defendant
no. 2. The Notice of Motion No. 2547 of 2014 is disposed off by
this Court on 19.01.2019 and thereafter, the matter was adjourned
time to time for evidence. This Court was pleased to frame the
issue on 05.04.2019 without their being Wring Statement of
defendant no. 2 on record. Hence, the defendant no. 2 prayed for
treating the reply filed by him to the Notice of Motion No. 2547 of
2014 as his Written Statement.
4. It is further contended by the defendant no. 2 that if, the
present Notice of Motion is not allowed, a grave loss and
irreparable damage would be caused to the defendant no. 2.
Hence, in the interest of justice, his reply to the Notice of Motion
No. 2547 of 2014 should be considered as his Written Statement.
5. Per contra plaintiff opposed application on the ground that
there is no substance in the Notice of Motion. The plaintiff served
Writ of Summons to the defendant but the defendant no. 2 filed
instant Notice of Motion in order to by pass the condonation of
delay in filing Written Statement. Hence, plaintiff prayed for
dismissal of Notice of Motion with cost.
-- 2 of 4 --
NM 2856-19 in S.C. Suit No.1904 of 2014
3 Date : 22.08.2019
6. Heard both the sides. I have perused the Roznama. I have
not found any No 'W.S'. order against the defendant no. 2.
Moreover, there is no proof on record to show that the defendant
no. 2 was served with the Writ of Summons. In such eventuality
if, the defendant no.2 himself wanted to adopt his reply to the
Notice of Motion No. 2547 of 2014, in my view, no prejudice
would be caused to the plaintiff. Hence, Notice of Motion needs to
be allowed in the interest of justice. Thus, I proceed to pass the
following order.
ORDER
1. Notice of Motion No. 2856 of 2019 is hereby made absolute
in terms of prayer clause (a) and (b).
2. The reply filed by the defendant no. 2 to the Notice of
Motion No. 2547 of 2014 will be treated as his Written
Statement of defendant no. 2.
3. Notice of Motion No. 2856 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 22.08.2019 Greater Mumbai
Dictated on : 22.08.2019
Typed on : 22.08.2019
Draft Submitted on : 22.08.2019
Checked on : 23.08.2019
Signed on : 23.08.2019
-- 3 of 4 --
NM 2856-19 in S.C. Suit No.1904 of 2014
4 Date : 22.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
23/08/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
22/08/2019
JUDGMENT/ORDER signed by P.O.
on
23/08/2019
JUDGMENT/ORDER uploaded on 23/08/2019
-- 4 of 4 --