Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3085/2019 ..1.. Suit No.2807/2017
CNR No.MHCC010084192019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3085 OF 2019
IN
SUIT NO.2807 OF 2017
Hozaifa Shoeb Contractor .. Plaintiff
Versus
Iqbal S/o. Abdul Razzaque Khan and another .. Defendants
Ms. Pushpa Thapa, advocate for plaintiff
Mr. N. P. Wagle, advocate for defendant No.1
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 22nd November, 2019
ORAL ORDER
Notice of motion is taken out by defendant No.1 to condone
delay caused in filing of written statement, to take the same on record
and to set aside order dated 02.08.2018 to proceed suit without written
statement against him.
2. It is the contention of defendant No.1 that he left India on
10.01.2011 and therefore he was not personally served upon with the
summons in present suit and his nephew Adil Irshad Khan had received
the summons on 12.01.2018 and as there was no mention of Court
Room number in summons, it was informed that plaintiff would
intimate the same but when plaintiff did not intimate about it, his
nephew had written letter to Sherif Office dated 19.01.2018 calling
upon Sherif and Bailiff to inform the Court Room before which above
-- 1 of 6 --
NM No.3085/2019 ..2.. Suit No.2807/2017
matter would be placed. Plaintiff returned from NigerAfrica on
21.04.2018. At that time he was not feeling well. He visited to his
Doctor for check up and it was revealed that he has suffered from
Typhoid and advised complete bed rest till 15.05.2018. However, by
that time Court vacation has started and his Advocate had gone out of
Mumbai during vacation. On 01.06.2018, defendant no.1 again had
fever and again diagnosed with Typhoid and he was advised complete
bed rest till 31.08.2018. Due to his ill heath he could not meet his
Advocate. After 31.08.2018, he forgot about above case as considerable
time has elapsed. Due to his busy schedule, he totally missed about
present matter. When he received copy of affidavit in lieu of oral
evidence from Advocate for plaintiff, he remembered about present suit
and immediately visited his Advocate who verified the current status of
case and only at that time he gave instructions to file written statement
in the above matter. In above circumstances, delay has been caused in
filing written statement. It is further contended that defendant No.1
has got good case on merits. No prejudice would be caused to the
plaintiff, if written statement of this defendant is taken on record by
setting aside order dated 02.08.2018. Accordingly, he made prayer in
above terms.
3. Plaintiff opposed notice of motion by filing reply. It is contended
that Advocate for defendant no.1 appeared in the present matter before
this Court on 19.03.2018 but he has not filed Vakalatnama. Said fact
indicate that defendant no.1 was aware about present suit since
January2018. It is contended that notice of motion is false, frivolous
and is taken out at belated stage with ulterior motive to delay the
matter and passing of the Decree against defendant no.1. Accordingly, it
is prayed that notice of motion be dismissed.
-- 2 of 6 --
NM No.3085/2019 ..3.. Suit No.2807/2017
4. Defendant no.1 has filed rejoinder to the reply of plaintiff and
denied the contentions of plaintiff. It is contended that he has given
valid and proper reasons in his affidavit in support of notice of motion.
Accordingly, he prayed for allowing notice of motion. He also filed
additional affidavit in support of notice of motion along with copies of
documents.
5. Perused notice of motion, affidavit in support of it, reply of
plaintiff, affidavit in rejoinder of defendant No.1, additional affidavit in
support of notice of motion and Roznamas of present proceeding.
Heard respective counsel for parties.
6. 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.
7. From the copy of Passport of defendant no.1, it is clear that
defendant no.1 was out of India from 01.01.2018 till 27.03.2018. From
the copy of medical certificate dated 20.05.2018 it is clear that he was
suffering from Typhoid fever from 21.04.2018 to 15.05.2018. Copy of
medical certificate dated 31.08.2018 shows that defendant no.1 was
again suffering from Typhoid for the period from 01.06.2018 to
31.08.2018. It appears from Roznama dated 19.03.2018 that Advocate
N.P. Wagle appeared for defendant no.1 but Vakalatnama on his behalf
was not filed. Certainly, defendant no.1 was out of country till
-- 3 of 6 --
NM No.3085/2019 ..4.. Suit No.2807/2017
27.03.2018. However on 19.03.2018 matter was adjourned to
04.05.2018 for NM reply. When defendant no.1 was ill during the
period from 21.04.2018 to 15.05.2018, so possibility could not be ruled
out that because of his illness he could not attend Court on 04.05.2018.
Thereafter matter was adjourned to 22.06.2018. However again
defendant no.1 was suffering from Typhoid during that period. So, it
cannot be ruled out that because of that reason he could not attend
court even on 22.06.2018. In above circumstances when defendant
no.1 has suffered from Typhoid for longer duration then his contention
about forgetting present matter cannot be doubted. In my view reason
assigned by defendant no.1 is sufficient to condone the delay caused in
filing written statement and to set aside order dated 02.08.2018. In the
facts of matter, it is unjust to deprive defendant no.1 from contesting
the matter on merits.
8. It is to be noted that defendant no.1 has annexed written
statement to notice of motion which also shows his bonafide and that
he does not want to protract the present matter. Therefore, in the
interest of justice and equity, it is just to allow present notice of motion,
subject to imposition of costs upon defendant no.1 which would be
payable to plaintiff. Hence, pass following order.
ORDER
1. Notice of Motion No.3085 of 2019 is allowed and made absolute
in terms of prayer clauses (a) to (c) subject to payment of costs of
Rs.5,000/ (Rupees five thousand only) to the plaintiff within period of
two weeks from the date of order.
Defendant no.1 is at liberty to deposit costs payable to the
plaintiff in Court.
2. On payment of costs, written statement of defendant no.1 be
taken on record and marked exhibit.
-- 4 of 6 --
NM No.3085/2019 ..5.. Suit No.2807/2017
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 22.11.2019 Gr. Bombay
Typed on : 22.11.2019
HHJ signed on :
-- 5 of 6 --
NM No.3085/2019 ..6.. Suit No.2807/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
23.11.2019, 3.40 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
22.11.2019
JUDGMENT/ORDER signed by P.O.
on
23.11.2019
JUDGMENT/ORDER uploaded on 23.11.2019
-- 6 of 6 --