Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3157/2019 ..1.. Suit No.9223/1995
CNR No.MHCC0186002019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3157 OF 2019
IN
SUIT NO.9223 OF 1995
(High Court Suit No.4330 of 1995)
Dilsherkhan Bikankhan .. Applicant
In the matter between
Shri Sabhajit Ramjas Pande (deleted)
through heirs and legal representatives
Kamlavati Sabhajit Pande and others .. Plaintiffs
Versus
Dilsherkhan Bikankhan .. Defendant
Mr. Rajnish Dubey, advocate for plaintiffs
Ms. Amrita Singh, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 23rd October, 2019
ORAL ORDER
Notice of motion is taken out by defendant for condonation of
delay caused in filing written statement and to take the same on record.
2. It is the contention of defendant that original plaintiff Sabhajit
Pande filed above suit before Hon'ble High Court bearing No.4330 of
1995. He also took out notice of motion No.3349 of 1995 which was
disposed of as per order dated 23.01.1998. But subsequently suit was
not listed. In the year 2012, above suit transferred to this Court and re
numbered as Suit No.9223 of 1995. This Court has issued notice on
17.12.2013. As present plaintiff Nos.1(a) to 1(c) came to know about
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filing of above suit they moved Chamber Summons No.1652 of 2014 for
amendment of the plaint. This Court dismissed said chamber summons
by order dated 21.04.2015. Present plaintiffs challenged said dismissal
order before Hon'ble High Court in Appeal from Order No.75 of 2019
which was allowed as per order dated 5th March 2019 and parties were
directed to appear before this Court on 25th March, 2019.
3. It is further contended since 25th March, 2019 above suit was
appearing from time to time. Though amendment was carried out in
plaint but amended plaint was not served upon defendant and it was
served upon his advocate by letter dated 18.04.2019. After going
through the record his advocate noticed that no written statement was
filed, since the matter was not appearing on board since 1998 and only
appeared in the year 2012 on the file of this Court.
4. It is further contended that due to nonlisting of the suit and
subsequent abatement; inadvertently written statement was not filed in
original suit and so also after amendment being carried out in plaint.
However, he has filed affidavit in reply to notice of motion which is
already on record. Somewhere in the month of April, 2019 advocate for
plaintiffs served the copy of amended plaint and as the suit was
adjourned from time to time for compliance; defendant could not file
written statement.
5. It is further contended that defendant has good case on merits.
He is not rank trespasser. His possession is lawful and with knowledge
and consent of original plaintiff. Therefore, defendant is entitled to file
written statement on record. It is further contended that assuming
without admitting that the writ of summons was served on 18.04.2019,
in that event, there is delay of 74 days and since the delay is not
deliberate; defendant is entitled for condonation of delay. If defendant
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is not allowed to file written statement on record, great prejudice will
be caused to him. Accordingly, defendant urged in above terms.
6. Plaintiffs filed reply and contended that reasons assigned by
defendant for nonfiling of written statement is false, frivolous and
unbelievable. No specific and valid reason given by defendant for
condonation of delay in filing written statement. Defendant is well
aware about the present case. Defendant and his advocate are
appearing in the matter since 1995. Therefore, the delay of 74 days in
filing written statement as stated by defendant is false. It is further
contended that even they do not count and remit the delay between
dismissal of suit on 21.04.2015 till restoration of suit on 05.03.2019
still there is delay of approximately more than 20 years. Defendant and
his advocate appeared in the matter on 31.11.1995; it means that he
was served with copy of plaint, notice of motion with affidavit in
support and also aware about the matter. Defendant has not
approached this Court with clean hands. Reasons given by him are false
and not acceptable. He has not made out any case to condone delay.
Accordingly, plaintiffs prayed for dismissal of notice of motion.
7. Perused notice of motion, affidavit in support of it, reply of
plaintiffs, and record and proceeding. Heard respective counsel for
parties. They advanced their arguments in accordance with respective
contention of parties. Learned advocate for plaintiff placed reliance
upon authority in the case of Suresh Vs. Municipal Corporation of
Greater Mumbai and others, 2014 (3) ALL MR 756 in support of his
submission and prayed to dismiss notice of motion.
On the other hand, learned advocate for defendant vehemently
argued that as per Rule 88 of the Bombay High Court (Original Side)
Rules written statement is to be filed within 12 weeks from the date of
service of writ of summons. In present case writ of summons has not
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been duly served upon defendant, so question of filing of written
statement did not arise. Further, suit has been filed prior to CPC
amendment of 2002. So, provisions of amended order VIII Rule 1 of
CPC is not attracted in present case and prayed to allow notice of
motion.
8. At the outset, I would like to mention that defendant has not
disputed that he appeared in High Court suit No.4330 of 1995 wherein
notice of motion No.3340 of 1995 was taken out by original plaintiff
Sabhajit Pande. It is also not in dispute that said notice of motion was
disposed of vide order dated 23.01.1998. From minutes of order dated
09th March, 2001 it is clear that advocate for original plaintiff sought
extension of time for returnable date of writ of summons before learned
Prothonotary and Senior Master and accordingly, it is ordered to issue
fresh summons. Further, minutes of order dated 08th June, 2001 before
learned Prothonotary and Senior Master shows that Shri. S. S. Mishra,
advocate for plaintiff states that suit has been expedited and that
defendant has waived service of writ of summons. In this background,
it is to be considered whether appearance of defendant in suit in notice
of motion No.3340 of 1995 amounts to waiver of writ of summons on
his part.
9. In the case of Suresh Vs MCGM (cited supra) it is held that,
“filing of vakalatnama and/or appearance of the parties through advocate,
amount to service of summons for all purposes.” It is useful here to
mention authority in the case of Meena Ramesh Lulla and Ors. Vs.
Omprakash A. Alreja and Ors., MANU/MH/1841/2011, wherein after
referring to Rule 84 of the Bombay High Court (Original Side) Rules, it
was held that “The evidence of the vakalatnama of the Advocate of the
Defendant itself would, therefore, show service of the summons upon the
Defendant. The appearance by the Defendant at any stage of the suit is further
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such evidence. Filing of the affidavit in reply in an interim application is also
such evidence. Consequently, when a suit comes up for hearing it would be
material to see whether the writ of summons is actually served which can be
evidenced by an affidavit of service, failing which it would be seen by the
Vakalatnama of the Defendants' Advocate, the appearance of the Defendant, or
any other proceeding filed or taken by the Defendant in the suit. Once any of
these is shown the formal service of the writ of service cannot be insisted upon.”
In view of this legal position in present case contention of defendant
about non service of writ of summons is not of much significance
particularly when he appeared in suit No.4330 of 1995 and contested
notice of motion No.3340 of 1995. His appearance amounts to deemed
service of writ of summons upon him.
10. There is no dispute that suit has been filed prior to coming into
force of amendment to Order VIII Rule 1 of CPC in 2002. It is pertinent
to note that in present case when said amendment came into force
written statement on behalf of the defendant admittedly has not been
filed. It is useful here to mention authority in the case of Sukhdeo Rai
Vs. Ashok Kr. Rai and Ors. MANU/GH/0108/2004 wherein it is
observed that, “Section 15 of the Code of Civil Procedure (Amendment) Act,
2002, makes it abundantly clear that the provisions of Orders V and VIII of the
amended Code of Civil Procedure, will not apply to a pending suit where the
written statement has been filed by the defendant. However, if in any such
pending suit, the written statement has not been filed, the amended provisions
will govern the proceedings in the suit. Section 15 of the Amendment Act, 2000
has not made the amendments in question retrospective to the extent noted
above.” In view of this legal position when defendant has not filed
written statement in present suit, provisions of amended Order VIII
Rule 1 of CPC is applicable in present case. So, I do not find merit in
submission of learned advocate for defendant about non applicability of
amended provision of Order VIII Rule 1 of CPC.
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11. Now, I consider present notice of motion on its own merits.
Defendant has assigned reason that due to nonlisting of suit and
subsequent abatement inadvertently written statement was not filed in
original suit. Plaintiffs have not brought material to show that matter
has been listed before Hon'ble High Court. Minutes of order before
learned Prothonotary and Senior Master dated 8th June, 2001 only
shows that matter has been removed from board but there is nothing to
suggest that it was listed subsequently. It is to be noted that matter has
been transferred to this Court in the year 2012 after enhancement of
pecuniary jurisdiction of this Court. After issuance of notice to the
parties; present plaintiffs tendered chamber summons bearing No.1652
of 2014 for bringing their names on record in place of deceased original
plaintiff. In said chamber summons present plaintiffs claimed that
original plaintiff died on 22.07.2004. Said chamber summons was
rejected vide order dated 21.04.2015 passed by my learned Predecessor.
It was challenged before Hon'ble High Court in Appeal from Order
No.75 of 2019 which was allowed as per order dated 05.03.2019 and
parties were directed to appear before this Court on 25th March, 2019.
Vide said order abatement is set aside and legal representatives of
deceased plaintiff are ordered to be brought on record. Thus, it is clear
that suit remained abated since after 90 days of death of original
plaintiff till passing of order dated 05.03.2019. During that period,
question of filing of written statement by this defendant did not arise.
After passing of said order suit has been restored on the file of this court
on 25.03.2019 and legal representatives of original plaintiffs have been
directed to serve the copy of amended plaint to defendant. After service
of amended copy of plaint present notice of motion is taken out by the
defendant on 19.08.2019. It is not in dispute that for about 15 years
suit remained abated however for initial period after the amendment
came into force in 2002 defendant has failed to file written statement
within prescribed period. It is a fact that minutes of order dated 09th
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March, 2001 shows that advocate for original plaintiff sought extension
of time for returnable date of writ of summons before learned
Prothonotary and Senior Master and accordingly, it is ordered to issue
fresh summons. That being so it seems that defendant was under
impression that writ of summons was not served upon him,
consequently he did not file written statement on record. It also appears
that defendant was under impression that matter is not listed so he did
not file written statement. May it be so, there are latches on the part of
defendant however, keeping in view facts of the matter as pointed
above it is unjust to refrain defendant from contesting the matter on
merits and to participate in the proceeding. Therefore, in the interest of
justice and equity it is just to condone delay caused in filing written
statement and to permit defendant to file the same on record by
imposing certain costs upon him. Hence, pass following order:
ORDER
1. Notice of Motion No.3157 of 2019 is allowed and made absolute
in terms of prayer clauses (a) & (b) subject to payment of costs of
Rs.6,000/ (Rupees Six Thousand only) to the plaintiffs within
period of three weeks from the date of this order.
Defendant is at liberty to deposit costs payable to the
plaintiffs in the court.
2. After payment of costs; written statement of defendant be taken
on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 23.10.2019 Gr. Bombay
Typed on : 23.10.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24.10.2019, 3.00 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
23.10.2019
JUDGMENT/ORDER signed by P.O.
on
24.10.2019
JUDGMENT/ORDER uploaded on 24.10.2019
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