Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.3302/2019 ..1.. InS.C.Suit No.1662/2015
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 3302 OF 2019
IN
S.C. SUIT NO. 1662 OF 2015
CNR NO : MHCC010089802019
Mr. Shamim Iqbal Khamker,
Through Constituted Attorney
Mr. Mansoor Ali Khan ...Plaintiff
Versus
1. Mr. Mustaqeem Khalil and Ors., ...Defendants
Appearance :
Mr. I. A. Khan, Advocate for the Plaintiff.
Mr. I. A. Patel, Advocate for defendant No.1 & 2.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 23RD MARCH, 2021.
ORAL ORDER
By this notice of motion, defendants No. 1 and 2 have
sought to condone the delay in filing the written statement and
setting aside the exparte order passed by this Court on
11.04.2019.
2. In brief, it is their case that, they are never served with the
writ of summons through the Bailiff. They came to know about
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Notice of Motion No.3302/2019 ..2.. InS.C.Suit No.1662/2015
filing of suit from the director of the defendant No. 3, when he
called them for some documents in respect of the suit property.
Documents were in the custody of defendant No. 2 who resides at
London. The documents could not be furnished to prepare the
written statement. Meanwhile, the defendant No. 1 went to
native place to take care of his matrimonial aunt and came to
Mumbai in May 2019 i.e. during summer vacation. His advocate
was out of station and so he could not give instructions to him to
prepare written statement and thus there is delay in filing the
written statement by defendants No. 1 and 2. The delay is not
intentional. Defendant No. 2 was not in position to come from
London till July 2019. The defendants have good case on merits
and so the delay be condoned.
3. The plaintiff has opposed the notice of motion contending
that, the defendants No. 1 and 2 are properly served through
Bailiff of this Court and affidavit of service to that effect is filed
before the Court. Defendants No. 1 and 2 have suppressed this
fact and have come with false contentions to misguide the Court.
No document is produced revealing residence of defendant No. 2
at London or that during which period he was at London.
Defendants No. 1 and 2 have already sold their shares to
defendant No. 3. Despite service they did not appear in the suit.
They have not come with clean hands and so motion be
dismissed.
4. Perused. Heard.
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Notice of Motion No.3302/2019 ..3.. InS.C.Suit No.1662/2015
5. Proceedings indicate that, the plaintiff has filed on record
an affidavit of service dated 19.12.2018. The original Writ of
summons is attached to said affidavit of service. The report of
Deputy Sheriff on said writ of summons categorically mentions
that, on 30.11.2018 the Bailiff had served writ of summons on
defendants No. 1 and 2. Summons of defendant No. 2 was
served on his wife Ms. Rubina.
6. Considering the report, it is clear that, the writ of summons
is served on defendants No. 1 and 2 properly through Bailiff of
the Court. However, defendants No. 1 and 2 have come with a
case that, they are never served with writs of summons through
the Bailiff and they came to know about the suit only through
director of defendant No. 2. The statements are absolutely false
in the light of report filed with the writ of summons
accompanying with the affidavit of service dated 19.12.2018.
7. No doubt the Court can be liberal in condoning the delay in
filing the written statement, if the ground is made out by the
defendants. At the same time, it is settled legal position that, a
person coming with a false case before the Court is not at all
entitled to any sympathy or assistance or relief from the Court. In
this case, defendants No. 1 and 2 have apparently made false
statements about non service of writ of summons through Bailiff
of the Court. On this ground alone they are not entitled to any
relief in this notice of motion, as they have attempted to play a
fraud upon the Court. In the result, I pass following order:
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Notice of Motion No.3302/2019 ..4.. InS.C.Suit No.1662/2015
ORDER
1. Notice of Motion No. 3302/2019 is dismissed with
costs of Rs.2,000/ payable by defendants No. 1 and
2 to the plaintiff with a period of four weeks from
the date of uploading of the order.
2. Notice of Motion No. 3302/2019 is disposed of
accordingly.
(AJIT N. MARE)
Judge,
Date : 23.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 23.03.2021
Transcribed on : 24.03.2021
HHJ Signed on : 30.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
31.03.2021 4.49 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 23.03.2021
Order signed by P. O. on 30.03.2021
Order uploaded on 31.03.2021
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