Shri Gulfam Ahmed SamaniVsThe Kurla Dawoodi Bohra Masjid And Ors

Date: 18-09-2019
Business: Adv. Naik for plaintiff present.
Adv. Vatkar for defendant Nos.6 to 10 present.
Adv. Miss Ankita for defendant Nos.1, 3, 4 and 5 present.
Advocate for plaintiff not pressed Ch/s No.1162/2019 therefore Chamber Summons No.1162/2019 is filed and disposed of accordingly.
Plaintiff tendered original Ch/s No.1559/2019. Copy of present Chamber summons along with affidavit is now supplied to defendant Nos.1,3,4, 5 and 6 to 10.  Plaintiff is directed to server the copy of Chamber summons upon defendant No.2.
Defendant nos.1, 3 to 5 tenderer original NM No.3153/2019. Copy is already served upon other side. Advocate for plaintiff sought time to file reply to NM 3153/2019.
KB
LO Order passed below Notice of Motion No.2371 of 2019
Newly added defendant Nos.6 to 10 have taken out notice of motion to condone delay caused in filing written statement.
Perused notice of motion, affidavit in support of it and reply of plaintiff. Heard respective counsel for parties.
Defendant Nos.6 to 10 have cited various reasons for delay caused in filing written statement by them including that of their follow up with previous advocate for filing written statement and, after change of their advocate it was advised that they should file counter claim and for giving instruction and preparation of draft written statement time has been spent till last week of April, 2019.  It is further contended that subsequently due to Ramzan and vacation draft written statement could not be finalized and it was finalized only in second week of June, 2019.  Accordingly, they prayed for condoning delay.
Plaintiff opposed notice of motion on the ground that reasons assigned are false and they have not assigned justified grounds for condoning delay.
Before dealing with draft notice of motion it is necessary to mention legal position in relation to proviso to Order VIII Rule 1 of CPC.  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 above legal position now I consider notice of motion.
Reasons assigned by defendant Nos.6 to 10 are sufficient to condone the delay.  More so, delay caused is not inordinate. It does not seem that these defendants want to delay the prosecution of the suit.  It cannot be said that delay caused is deliberate.  In the facts of matter it is not appropriate to refrain these defendants from contesting the matter on merits. Therefore, in the interest of justice I am inclined to condone delay caused in filing written statement. However, considering facts of the matter and conduct of these defendants it is necessary to impose certain costs upon them.  Hence, pass following order.
ORDER
1. Notice of Motion No.2371 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.3000 (Rupees Three thousand) to plaintiff within period of one week from the date of this order.
 Defendant Nos.6 to 10 are at liberty to deposit total costs of Rs.3000 payable to plaintiff in the Court.
2. After payment of costs written statement of Defendant Nos.6 to 10 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Matter is adjd. to 16.10.2019 for reply.
Next Purpose: REPLY
Next Hearing Date: 16-10-2019

Date: 16-10-2019
Business: Adv. Patakar H/F Naik for plaintiff present.
Adv. Miss Ankita for defendant no 1,3,4 and 5 present.
Adv. Matkar for defendant no 6 to 10 present.
Adv. For defendant no 6 to 10 made statement that cost has already been received by the learned adv. For plaintiff Shri. Naik.He had shown acknowledgement in that respect.
Compliance has already been made.
Plaintiff filed reply to NM 3153/19 t.o.r.
Ex 3 W/S filed by def no 6 to 10 t.o.r
Adjd for NM hearing to 13.11.2019
Next Purpose: HEARING
Next Hearing Date: 13-11-2019

Date: 13-11-2019
Business: Adv. Naik for plaintiff present.
Adv. Ankita for defendant Nos.1, 3, 4  and  5 present.
Adv. Bijal Shah for defendant Nos.6 to 10 present.
Defendant Nos.6 to 10 filed reply to CS No.1559 of 2019
Copy of reply to CS served upon plaintiff.
Heard both sides on NM No.3153 of 2019
KB
LO
ORDER PASSED BELOW NOTICE OF MOTION NO.3153 OF 2019
        Perused notice of motion, affidavit in support of it and reply of plaintiff.  Heard respective counsel for parties.
        Notice of motion is taken out by defendant Nos.1, 3, 4 and 5 for condoning the delay caused in filing written statement.
        It is the contention of defendants that writ of summons has not been served upon them.  They assigned reason that settlement talks were going on between the parties and matter was referred to Lok Adalat for settlement and defendant Nos.6 to 10 have taken out chamber summons for adding them as party.  Because of above proceedings written statement remained to be filed by them.  It is further contended that delay caused is not intentional.  They have got good defence on merits.  Therefore, they prayed in above terms.
         Plaintiff opposed notice of motion on the count that no justified ground or reason shown by the defendants to grant relief. Accordingly, they prayed for dismissal of notice of motion.
       Before adverting to the facts 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.
     On perusal of record it appears that Advocate Shamim has filed Vakalatnama on behalf of these defendant on 02.11.2017.  Since these defendants appeared so same amount to dispensing or formality of service of writ of summons upon them.  Therefore, reason of non service of writ of summons is not of much significance for the purposes of deciding present notice of motion.  No doubt matter has been referred for mediation and also to lok adalat for settlement of dispute.  But it seems that dispute could not be settled. It is also true that newly added defendant Nos.6 to 10 have taken out proceeding for impleading them as party defendants.  More so, there are different notice of motions have taken out and it was adjourned from time to time for different stages in relation to those proceedings.  It was never posted for filing of written statement of these defendants.  Under these circumstances possibility of these defendants for missed of filing of written statement cannot be ruled out.  It is pertinent to note that Defendant No.1 is registered Public Trust. For latches on the part of its Trustees in taking prompt action for filing of written statement, Trust should not suffer.  Therefore, considering the facts of matter in the interest of justice and equity it is unjust to deprive these defendants from contesting the matter on merits. Hence, I am inclined to allow present notice of motion with certain costs and pass following order.
ORDER
1.    Notice of Motion No.3153 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.5000/- (Rupees Five Thousand only) to plaintiff within period of two weeks from the date of this order.
     Defendant Nos.1, 3, 4 and 5 are at liberty to deposit the costs payable to plaintiff in the Court.
2. On payment of costs by these defendants their written statement be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 16.12.2019
Nature Of Disposal: ALLOWED
Disposal Date: 13-11-2019

Main Case No: SUIT/0101414/2017
Main Cnr: MHCC010062692017
Main Filing No: 111447

Filing Number: 109113/2019
Filing Date: 20-08-2019
First Hearing Date: 18th September 2019
Decision Date: 13th November 2019
Court Number And Judge: 2-COURT 02 ADDL SESSIONS JUDGE