Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2986 OF 2019
IN
S.C. SUIT NO. 1840 OF 2015
( CNR No. MHCC01-008188-2019)
1. Nazim Sultan Ali Jariwala & Anr. ...Plaintiffs.
V/s.
1. Rahim Sultan Ali Jariwala & Anr. ...Defendants.
Appearances :-
Learned advocate M. A. Dhorajiwala for plaintiffs.
Learned advocate Swati Margi for defendant No.1.
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 28/09/2021.
ORDER
This is a notice of motion taken out by the defendant no.1 for
setting aside exparte and no WS order passed against the defendant
no.1 and to accept written statement by condoning delay of 1520 days.
2. On 07/12/2019, the learned counsel on behalf of the plaintiffs
has present and he submitted that he has strongly opposed to notice of
motion of the defendant no.1. Plaintiffs do not want to file written say
on this notice of motion and he is ready for arguments.
3. Read the present notice of motion. Perused the affidavit of
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defendant no.1 in support of the notice of motion. Heard learned
counsel on behalf of defendant no.1 and learned counsel on behalf of
plaintiffs.
4. The learned counsel on behalf of the defendant no.1 has
submitted that the defendant no.1 was regularly present in this matter
and he was filed his say on the notice of motion bearing No.3300/2015
taken out by the plaintiffs. The defendant no.1 and his previous
counsel were present in this matter for attending to the notice of motion
taken out by the plaintiffs. Thereafter on 05/05/2016, the Hon’ble
Court has been disposed off the said notice of motion. Meanwhile, on
29/07/2019 the defendant No.1 was personally present in this matter
and he was informed that his previous advocate is expired and he wants
to engage his new advocate namely Swati Margi. The matter was
wrongly shown as framing of issues instead of filing written statement
of the defendants. Therefore, this Hon’ble Court on 17/07/2018,
corrected the roznama and on that day passed exparte order against the
defendants and matter was kept for exparte evidence of the plaintiffs.
Thereafter. On 26/09/2018, the plaintiffs have filed evidence affidavit
below Exhibit-04. Therefore, the defendant no.1 filed this notice of
motion by condoning delay and accepting the written statement of the
defendant no.1.
5. The learned counsel on behalf of the plaintiffs has argued that
there is delay of 1520 days. The defendant no.1 was appeared in this
present matter but intentionally failed to file his written statement. The
plaintiff has filed evidence affidavit is on record below Exh.4 on
26/09/2018. Thereafter, on 29/07/2019, the defendant no.1 was
appeared alongwith new advocate Swati Margi and the advocate
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requested to this court short adjournment for filing vakalatnama on
behalf of defendant no.1. Thereafter on 05/08/2019, the present
defendant no.1 came to be filed notice of motion on behalf of defendant
no.1. There is no day to day explanation given by the defendant no.1 in
this present notice of motion. Therefore, present notice of motion of
defendant no.1 may kindly be dismissed by imposing heavy costs.
6. After hearing arguments advanced on behalf of advocate of
plaintiff and advocate for defendant no.1 at length. Admittedly,
plaintiffs have not filed their say on this notice of motion taken out by
the defendant no.1. On perusal of record, it appears to me that the
present suit came to be filed and registered in the year 2015. The
defendant no.1 was appeared through his advocate in this matter. The
notice of motion of the plaintiffs bearing no. 3300/2015 has been
disposed off by this court on 05/05/2016. It further reveals that after
dismissal of notice of motion No. 3300/2015, wrongly the matter was
posted for framing of issues. Thereafter, on 17/07/2018, this Court has
corrected the stage and passed no WS order against the defendants and
matter was kept for exparte evidence of the plaintiffs. On 26/09/2018,
the plaintiffs have filed their evidence affidavit below Exh.4. Thereafter,
on 29/07/2019, the defendant no.1 was present and he has submitted
that his previous advocate was expired and his new advocate Swati
Margi appeared and sought adjournment for filing vakalatnama.
Thereafter, on 05/08/2019 this notice of motion came to be filed.
7. On scrutiny of the record and on perusal of the affidavit of
defendant no.1 in support of this notice of motion it appears to me that
the defendant no.1 was regularly present in this matter and he was also
contested the notice of motion No. 3300/2015 and the said notice of
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motion has been dismissed by this Court on 05/05/2016. Moreover, it
further appears to me that there is no intention of the defendant no.1
for not filing his written statement. Admittedly, his previous advocate
has been expired. Considering the nature of the suit, it appears that
huge property is involved in this matter. Therefore, it requires that this
matter be decided on merit. Considering facts and circumstances, I
inclined to allow notice of motion of defendant no.1 by imposing heavy
costs on him. Hence, I proceed to pass following order.
ORDER
1. Notice of Motion No.2986/2019 is hereby allowed as prayed for.
2. The defendant no.1 is hereby directed to deposit cost of Rs.5,000/- to
District Legal Services Authority, Mumbai on or before one month from
the date of this order.
3. Notice of Motion No. 2986/2019 is disposed off accordingly.
Sd/-
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :28/09/2021. Gr. Mumbai
Dictated on: 28/09/2021
Transcribed on: 28/09/2021
HHJ signed on: 28/09/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
28/09/2021 at 5.00 p.m.
NAME OF STENOGRAPHER
( Mrs. V. V. Malgaonkar )
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
28/09/2021
Judgment/order signed by P.O. on 28/09/2021
Judgment/order uploaded on 28/09/2021
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