Order 1

Order Details: Notice of Motion
Pdf Text: NM.No.4583/2023 - 1 - SU.No.2346/2019
MHCC010129662023
Presented on : 06-12-2023
Registered on : 06-12-2023
Decided on : 16-03-2026
Duration : 2 years, 3 months, 10 days
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.4583 OF 2023
IN
S. C. SUIT NO.2346 OF 2019
Janardan Namdeo Mane .. Plaintiff
V e r s u s
1. Kaushalya Namdeo Mane
2. Samita Sharad Amkar alias Jayvanti
Namdeo Mane .. Defendants
Appearance :-
Ld. Advocate Mr. Viraj Kandpile for the Plaintiff.
Ld. Advocate Mr. N. Ghosalkar a/w Abhay D. Parab for the Defendants.
CORAM: HIS HONOUR JUDGE
S.M. BUKKE
COURT ROOM NO.03
DATE: 16th March, 2026.
O R D E R
(Dictated and Pronounced in open Court)
1. The present notice of motion has been preferred by
defendant Nos.1 and 2 to set aside the order dated 6.2.2022 passed by
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this court i.e. no written statement order and to allow them to file their
written statement by condoning delay of 996 days.
2. The plaintiff has instituted the suit on 05.08.2018 for
partition and perpetual injunction against defendant No.2 and her
mother and other defendants. Due to Covid-19 Pandemic the health of
the mother of defendant No.2 was not well and defendant No.2 also
lost her husband. Though suit summons was served upon defendants
due to sad demise of her husband and ill health of her mother she
could not file written statement within stipulated time. Therefore, this
Court has passed no written statement order against defendant Nos.1
and 2 on 06.02.2021.
3. There is delay of 996 days. Now the defendants have also
filed written statement on record. They have good case on merit, if the
delay is condoned no harm or prejudice will cause to the plaintiff. On
the contrary, if delay is not condoned the defendants will sustain loss
which cannot be compensated in terms of money. Therefore,
defendants craved to condone the delay and allow them to file written
statement by setting aside order dated 06.02.2021.
4. The plaintiff strongly resisted the notice of motion on the
ground that the present suit instituted on 05.08.2019 and though writ
of summons is served upon defendants they have not filed written
statement. There is delay of 1953 days to file written statement. Day to
day delay is not explained by defendants. There is no proper ground to
condone the delay. Even the Covid-19 period is excluded the delay for
rest of the days cannot be condoned. There is no sufficient cause to
condone the delay. The entire notice of motion tendered by defendant
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is vague incomprehensible and unacceptable. The defendants have not
filed written statement within 90 days and delay for rests of the period
is not explained with sufficient cause. Therefore, the plaintiff craved to
dismiss the notice of motion.
5. Heard the learned advocates for the plaintiff and
defendants. Perused record.
6. On perusal of record it appears that the present suit for
partition and perpetual injunction is instituted on 05.08.2019. The
writ of summons served upon the defendants on 02.01.2020 and the
present notice of motion tendered on 30.10.2023. Therefore, there is
delay of more than 996 days.
7. The delay occurred due to Covid-19 pandemic as well as
due to demise of the husband of defendant No.2. The mother of
defendant No.2 was also having major heath issue. After death of
husband and due to unforeseen incidents occurred due to Covid-19
Pandemic. The defendants were under the shock. This is the sufficient
cause under Section 5 of Limitation Act, 1963 when the woman is
facing such type of difficulty, the delay has to be construed liberally to
advance the substantial justice. The word ‘shall’ in Order VII1 Rule 1 of
C.P.C. is directory and not mandatory and must be interpreted to
advance the cause of justice.
8. The refusal to condone the delay would result in grave
prejudice and miscarriage of justice in suit for partition. The
procedural rules are intent to facilitate adjudication on merit and not to
obstruct it. If the delay is not condoned an order dated 6.2.2022 is not
set aside then irreparable loss and prejudice will cause to defendants
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which cannot be compensated in terms of money. On the other hand
the plaintiff who have also facing this litigation since 2019 is suffered
inconvenience which can be compensated by imposing cost upon the
defendants.
9. This court is inclined to impose the cost under Section 35
of Cr.P.C. It is mandatory when the court is dealing with a delay. The
balance of convenience lies in favour of defendants. In such
circumstances, the delay which is attributed to the ill health of mother
and death of husband of the defendant No.2 shows that the defendant
has acted with a reasonable diligence. Needless to say that delay is
inordinate. However, considering a natural calamities and unforeseen
events happened the defendants have shown the sufficient cause.
There is no malafide nor gross negligent are administered. In such
circumstances, this Court is satisfied that sufficient cause has been
made out for condoning the delay. Hence, by imposing reasonable cost
the notice of motion deserves to be allowed. Hence, I pass following
order:
O r d e r
1. Notice of Motion No.4583 of 2023 is made absolute in terms of
prayer clause (a) and (b).
2. The delay in filing written statement is condoned subject to cost
of Rs.6,000/- payable to the plaintiff.
3. The written statement filed by the defendants be exhibited on
payment of costs.
4. The order dated 6.2.2022 passed by this Court be set aside on
payment of costs. The defendants No.1 and 2 collectively pay the cost
of Rs.6,000/- to the plaintiff within 15 days.
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5. If the defendants failed to pay the cost, this order automatically
stands vacated.
6. Copy of written statement to be served on the plaintiff.
7. Accordingly, Notice of Motion stands disposed of.
(S.M. BUKKE)
Judge,
City Civil Court,
Date : 16.03.2026 Mumbai.
Dictated on : 16.03.2026
Transcribed on : 18.03.2026
Checked on : 18.03.2026
Signed on : 20.03.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME 23.3.2026/12.17 p.m.
NAME OF STENOGRAPHER (Grade-1) (Mrs. Pradnya S. Naik)
Name of the Judge (With Court room no.) Shri S.M. BUKKE
(C.R. No.03)
Date of Pronouncement of JUDGMENT/
ORDER
16.3.2026
JUDGMENT/ORDER signed by P.O. on 20.3.2026
JUDGMENT/ORDER uploaded on 23.3.2026
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