Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 3185/19 (LCS 1069/18)
MHCC010086462019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3185 OF 2019
IN
LONG CAUSE SUIT No.1069/2018
Mr. Rajesh s/o. Ramprasad Yadav … Plaintiff
Versus
1] Raksha Construction Co.
2] The Chief/Deputy Engineer
3] Municipal Corporation of
Greater Mumbai. ... Defendants
Appearance :
Mr. P. K. Nerkar, Advocate for plaintiff.
Mr. Baboo h/f. Mr.Bhat, Advocates for defendant No.1.
Mrs. Rawade, Advocate for defendants No.2 and 3.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 21/02/2023.
O R D E R
. Defendant No.1 has taken out present Notice of Motion for
taking Written Statement on record by condoning the delay of 52 days
in filing Written Statement.
-- 1 of 4 --
2 N/M 3185/19 (LCS 1069/18)
2] It is stated that Writ of Summons was served without copy
of the plaint. The copy of plaint was served upon defendant No.1 on
12/5/2018 but the plaintiff has not informed about the next date.
Learned advocate for defendant No.1 received said letter on 15/5/2018.
He has affirmed the Written Statement on 5/6/2018. However, due to
oversight and workload Written Statement remained to be filed and,
therefore, there is delay of 52 days in filing Written Statement.
3] The plaintiff opposed Notice of Motion by filing reply
stating that there is no cogent reason for condoning the delay. There is
delay of more than 13 months. No any just and satisfactory reason
given for condonation of delay. Hence the plaintiff prayed for rejection
of Notice of Motion.
4] Points for determination alongwith findings thereon for the
reasons are as under :
Sr.
No.
P O I N T S F I N D I N G S
1) Does defendant No.1 has shown
sufficient cause for delay in filing
Written Statement by condonation of
delay ? . . .
Yes.
2) What order ? . . . Notice of Motion is
allowed.
:: R E A S O N S ::
5] Heard both sides. Perused Notice of Motion, affidavit in
support thereto, reply and Record and Proceeding.
-- 2 of 4 --
3 N/M 3185/19 (LCS 1069/18)
AS TO POINTS No.1 TO 2 :
6] It is contention of defendant No.1 that only the Writ of
Summons was served upon him on 4/5/2018 and then on 15/5/2018
defendant No.1 was served with copy of the plaint. Hence there is
delay. According to the plaintiff, the copy of plaint has been served
upon defendants on 11/5/2018. Notice of Motion has been taken out in
August 2019. Thus there is delay of more than a year.
7] Defendant No.1 is a contesting party. The plaintiff has filed
this suit for specific performance directing defendant No.1 to transfer
Gala in favour of the plaintiff and further direction to defendant No.1 to
accommodate the plaintiff in suit premises. Thus, defendant No.1 is a
necessary party to suit and it will be affected by decision of suit.
8] It is well settled that in an adversarial system no party
should ordinarily be denied the opportunity of participating in the
process of justice dispensation unless compelled by express and specific
language of the statute. The procedural law is not to be a tyrant but a
servant, not an obstruction but is an aid to justice. The language
employed by draftsman of procedural law may be liberal or stringent
but the fact remains that the object of prescribing procedure is to
advance the cause of justice.
9] Refusing defendant No.1 to file written statement by
condoning the delay will amount to cause of justice being denied.
Therefore, in order to decide the controversy involved in suit on merit
and to give a fair chance to defendant No.1 to contest suit by putting its
case it would be just and proper to allow defendant No.1 to file written
statement order by condoning delay caused in filing thereof. Therefore,
-- 3 of 4 --
4 N/M 3185/19 (LCS 1069/18)
considering the facts and the reasons given by defendant No.1, I am of
the opinion that one more fair chance needs to be given to defendant
No.1 to contest suit by filing Written Statement. In the circumstances,
Notice of Motion deserves to be allowed subject to cost. Hence I answer
point No.1 in the affirmative and in answer to point No.2 I pass
following order :
O R D E R
Notice of Motion No.3185/2019 is hereby made absolute in terms
of prayer clause (a) subject to payment of cost of Rs.3,000/ to
be credited to the District Legal Services Authority on or before
the next date.
Date : 21/02/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
22/02/2023 03:00 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 21/02/2023
ORDER signed by P.O. on 22/02/2023
ORDER uploaded on 22/02/2023
-- 4 of 4 --