Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3167/2019 L.C. Suit No.2249/2016
CNR No. MHCC01-008623-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3167 OF 2019
IN
L.C. SUIT NO. 2249 OF 2016
1. Suresh Laljibhai Bhanushali )
Aged : 57 years, Occupation : Business )
2. Pratap Laljibhai Bhanushali )
Aged : 57 years, Occupation : Business )
3. Dinesh Laljibhai Bhanushali )
Aged : 57 years, Occupation : Business )
Carrying on business at Ground and )
Mezzanine Floor/Loft Unit C,R. R. House )
Senapati Bapat Marg, Lower Parel, )
Mumbai – 400 013. )...Plaintiff
Vs.
1. The Municipal Corporation of Gr. )
Mumbai, A statutory Corporation )
established under B.M.C. Act, 1888 )
having its office at Mahapalika Marg, )
Mumbai – 400 001. )
2. The Designated Officer & The )
Assistant Engineer (B & F), Office of )
the Assistant Commissioner, G/South )
Ward, N.M. Joshi Marg, )
Mumbai – 400 013. )...Defendants
APPEARANCE:-
Ld. Adv. Mr. Nalawade for the plaintiff.
Ld. Adv. Mr. Kumawat for the defendants/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT.C. P. JAIN (C.R.NO.06)
DATED : 14th FEBRUARY, 2020.
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O R D E R
This Notice of Motion No.3167/2019 is taken out by
defendants praying to set aside & permit them to file their written
statement.
2. In the affidavit filed in support of Notice of Motion, it is
averred by defendants that defendant being statutory and public body
and a vast organization, due to heavy workload these defendants failed
to file the written statement in time. Defendants were required to take
instructions from different departments and it was not possible to get
the draft of written statement approved within stipulated time.
Defendants have very good case and unless these defendants files the
written statement, the correct facts and legal position will not be
pointed out to the court. Defendants therefore prayed to allow their
notice of motion.
3. Plaintiff has resisted the aforesaid notice of motion by
filing his reply. According to plaintiff, notice of motion is not
maintainable. Defendants wants to improve their defence which is
already made out in the reply to his main notice of motion. Present
notice of motion as well as affidavit in support is absolutely vague, the
defendant failed to make out the prima-facie case for condonation of
delay as prayed for in the notice of motion. Defendants apparently
failed to explain the reasons on merits, for the delay caused in filing the
present notice of motion. For aforesaid reasons, he prayed to dismiss
the notice of motion.
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4. Heard both the learned advocates and perused the
proceeding. Both learned advocates have argued in lines of the
pleadings in the notice of motion and reply filed on record.
5. I have given anxious consideration to arguments of both
the learned advocates. At the outset, it is not in dispute that in order to
condone delay, defendants have to make out sufficient cause. What is
sufficient cause has been explained in the citation of
Balwant Singh
(Dead) V/s. Jagdish Singh and others reported in (2010) 8 SCC 685.
Liberal construction of the expression “sufficient cause” is intended to
advance substantial justice which itself presupposes no negligence or
inaction on the part of the applicant, to whom want of bonafides is
imputable. The expression “sufficient cause” implies the presence of
legal and adequate reasons. The word “sufficient” means adequate
enough, as much as may be necessary to answer the purpose intended.
It embraces no more than that which provides a plentitude which,
when done, suffices to accomplish the purpose intended in the light of
existing circumstances and when viewed from the reasonable standard
of practical and cautious men. The sufficient cause should be such as it
would persuade the court, in exercise of its judicial discretion, to treat
the delay as an excusable one. The party should show that besides
acting bonafide, it had taken all possible steps within its power and
control and had approached the court without any unnecessary delay.
The test is whether or not a cause is sufficient to see whether it could
have been avoided by the party by the exercise of due case and
attention.
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6. In light of aforesaid legal pronouncement, it needs to be
seen as to whether defendants have made out sufficient cause for
condoning the delay or whether plaintiff has succeeded in bringing on
record inaction, negligence, malafides on part of defendants, to reject
the notice of motion of defendants.
7. Defendants have affirmed on oath the reasons for which
delay is caused in filing written statement. According to them,
defendants being statutory and public body and a vast organization,
due to heavy workload this defendants failed to file the written
statement in time. Defendants were required to take instructions from
different departments and it was not possible to get the draft of written
statement approved within stipulated time. For aforesaid reasons, there
is delay which is unintentional and not deliberate.
8. Defendants have made out reasons in their notice of
motion as to why they could not file written statement within time. As
no doubt is created in aforesaid reasons, it can be safely said that
defendant has made out sufficient cause to condone the delay. No
inaction, negligence or malafides are pointed out by plaintiff.
Therefore, Defendants have made out sufficient cause can be
concluded.
9. The observations in the cited case of
R.N. Jadi & Brothers
V/s. Subhashchandra reported in (2007) 6 SCC 420 further come to aid
of defendants in which it is observed that, Procedural law is handmaid
of justice. In an adversarial system, no party should ordinarily be
denied the opportunity of participating in the process of justice
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dispensation. Unless compelled by express and specific language of the
statute, the provisions of CPC or any other procedural enactment ought
not to be constructed in an manner which would leave the court
helpless to meet extraordinary situations in the ends of justice.
Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice. Therefore, the
arguments of learned advocate for defendant needs to be countenanced
as against the arguments of learned advocate for plaintiff.
10. The defendant corporation is served with writ of summons
on 05.10.2016. Therefore, there is delay of more than 2 years in
moving this notice of motion. Though there is nothing on record that
the delay caused is malafide, the delay is not short delay. Though
defendant corporation is statutory body, law is equal for all. The
mandate of Order 8 Rule 1 of Code of Civil Procedure is equally
applicable to defendant corporation. Applying the principles laid down
in the aforesaid citations and Order 8 Rule 1 of CPC being directory in
nature, suit needs to be decided on merits by giving opportunity to
defendant. Therefore, notice of motion of defendant deserves to be
allowed on costs. Therefore, I proceed to pass following order.
11. However, though there is nothing on record that the delay
caused is malafide, considering the period elapsed, it cannot be
concluded that the delay is short delay. Though defendant corporation
is statutory body, law is equal for all. The mandate of Order 8 Rule 1 of
Code of Civil Procedure is equally applicable to defendant corporation.
Applying the principles laid down in the aforesaid citations and Order
8 Rule 1 of CPC being directory in nature, suit needs to be decided on
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merits by giving opportunity to defendant. Therefore, notice of motion
of defendant deserves to be allowed on costs. Therefore, I proceed to
pass following order.
ORDER
1. The Notice of Motion No.3167/2019 is hereby allowed subject
to costs of Rs.50/- (Rs. Fifty Only) to be paid by
defendants/MCGM to D.L.S.A. Mumbai on or before next
date.
2. Upon depositing the costs as per clause (1) of this order, the
delay caused in filing written statement shall stand condoned
and the written statement tendered on record by
defendants/MCGM shall be taken on record.
3. The Notice of Motion No.3167/2019 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date :14.02.2020. City Civil Court, Gr. Bombay
Dictated on : 14.02.2020.
Transcribed on : 14.02.2020.
Signed on : 25.02.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.02.2020, 02.50 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
14.02.2020
JUDGMENT/ORDER signed by P.O.
on
25.02.2020
JUDGMENT/ORDER uploaded on 27.02.2020
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