Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3124/2019 ..1.. Suit No.3224/2018
CNR No.MHCC010085192019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3124 OF 2019
IN
SUIT NO.3224 OF 2018
Rita Govind Pherwani and another .. Plaintiffs
Versus
Dilip Madhavdas Pherwani and others .. Defendants
Ms. Sanjana Das, advocate for plaintiff
Mr. Bruno Castellino, advocate for defendant Nos.1 to 4
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 16th October, 2019
ORAL ORDER
Notice of motion is taken out by defendant Nos.1 to 4 for
condoning the delay caused in filing written statement and to take the
same on record.
2. It is the contention of defendant Nos.1 to 4 that, parties to the
suit were referred to mediation on or about 22.10.2018 and mediation
process lasted from 15.11.2018 to 15.02.2019. These defendants were
hopeful that dispute would be resolved in mediation and had taken
efforts for the same. Because of which written statement remained to
be filed within specified period. They also contended that writ of
summons has not been served upon them. It is further contended that
written statement was affirmed and ready for filing on 6th June, 2019
but it could not be filed for want of appropriate proceeding to take the
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same on record. It is further contended that these defendants have good
case on merits and no prejudice would be caused to plaintiffs if present
notice of motion is allowed. Accordingly, these defendants made prayer
in above terms.
3. Plaintiffs opposed notice of motion by filing their reply on
affidavit through plaintiff No.2. It is contended that defendants have
not satisfactorily explained delay. They have not demonstrated valid
and or exceptional reason for not filing written statement within 30
days. Accordingly, they prayed for dismissal of notice of motion.
4. Perused notice of motion, affidavit in support of it and reply of
plaintiffs. Heard learned counsel for parties. They advanced their
arguments in accordance with respective submissions of parties.
5. Before adverting to the facts of the present matter, I would like
to mention that 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.
6. It is pertinent to note that these defendants appeared in the
matter on 04.10.2018 and copy of plaint has already been served upon
these defendants. Now they are estopped from saying that writ of
summons has not been served upon them so, they could not file written
statement within time. In view of their appearance in the matter writ of
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summons stands waived against them. May it be so, it is true that on
22.10.2018 matter was referred for mediation and mediation report
was received only on 11th March, 2019 intimating that mediation has
failed. Possibility could not be ruled out that these defendants being
involved in the process of mediation forgotten to file written statement
within prescribed time. It is pertinent to note that suit filed is for
partition of properties and considering the nature of suit it would be
unjust to refrain these defendants from contesting the matter on merits
merely on technical count of delay caused in filing of written statement
by them. It cannot be said that delay caused is to protract trial. They
have already annexed written statement which show their bonafide to
participate in the matter and their desire for progress of the matter. In
the above circumstances, I am inclined to condone the delay caused in
filing of written statement and to take the same on record. However,
considering the facts of matter it is necessary to impose certain costs
upon these defendants. Hence, pass following order:
ORDER
1. Notice of Motion No.3124 of 2019 is allowed and made absolute
in terms of prayer clauses (a) to (c) subject to payment of costs
of Rs.5000/ (Rupees Five Thousand only) to plaintiffs within
period of three weeks from the date of this order.
Defendant Nos.1 to 4 are at liberty to deposit costs
payable to plaintiffs in the Court.
2. After payment of costs, written statement of defendant Nos.1 to
4 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 16.10.2019 Gr. Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.10.2019, 11.20 a.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
16.10.2019
JUDGMENT/ORDER signed by P.O.
on
17.10.2019
JUDGMENT/ORDER uploaded on 19.10.2019
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