Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3316 OF 2019
(CNR NO.MHCC010090242019)
IN
LONG CAUSE SUIT NO. 189 OF 2018
Mrs. Khatun Bi Imam Sahab Shaikh ... Plaintiff
V/s.
1. Mrs. Shehza Bano & Ors. ...Defendants
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI ( C.R.NO.06)
DATE : 25/03/2022
Adv. Mr. Raj Gopalswami for the plaintiff.
Adv.Ms. Narvekar for the defendant no.2
Adv. Mr. Amol Diwate for the defendant BMC.
ORAL ORDER
1. This Notice of Motion is taken out by defendant no.2
defendant/BMC to set aside no written statement order , to condone the
delay in filing written statement and permission to file written
statement.
2. The plaintiff has filed reply to the same and strongly
opposed the notice of motion.
3. Perused the Notice of motion and say. Heard the learned
Advocates for the parties at the length.
4. It is contended by the defendant no.2 that due to ill health
and financial problem, he could not file written statement. However,
due to oversight the said written statement is either misplaced/lost and
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2 N/M No. 3316/2019
could not be submitted before this Court. Now written statement is
ready.
5. The procedure as to limit for filing written statement and
consequences of not filing the same are given in Order 8 of Civil
Procedure Code. Order 8 Rule 10 of the C.P.C., has laid down a
procedure about passing of a decree in favour of the plaintiffs, if
defendants fail to file his written statement. This discretion is not
exercised by the court in favour of the plaintiffs for the reason of failure
of defendants to file their written statement.
6. In this background, if the defendants are allowed to file
their written statement, it will not cause any prejudice to either plaintiff
or to the overall hearing of this suit. If these defendants is allowed to
file written statement and if the suit decreed in favour of the plaintiffs,
it would be a decree on merit. On the other hand, if the defendants are
not allowed to file their written statement, it would result into a decree
which would be technically exparte decree. Therefore, this court is of
the opinion that evidence of the plaintiff has not commenced and
therefore, defendants should be allowed to file their written statement
in order to enable this court to decide the suit on merit.
7. There is one more reasonable important point that the
written statement is filed after the period of 90 days of the service of
summons/notice. The written statement along with this application is
being filed after the period of 90 days. However, this court is of the
opinion that for the stated reasons the defendants are to be allowed to
file their written statement. Filing of written statement by this
defendants beyond the prescribed period of time framed has not caused
any serious prejudice to the plaintiff. Hence, the order.
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3 N/M No. 3316/2019
ORDER
1. The Notice of Motion No.3316/2019 is allowed.
2. No written statement order passed against the defendant
No.2 is set aside and defendant No.2 is granted permission
to file written statement in the interest of justice .
3. The Notice of Motion No.3316/2019 is disposed off.
(Smt. S.G.Shaikh)
Date25/03/2022 Judge,City Civil Court,
Gr.Mumbai.
Dictated on : 25/03/2022
Typed on : 25/03/2022
Signed on :
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4 N/M No. 3316/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25/03/2022 05.30 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
25/03/2022
JUDGMENT/ORDER signed by
P.O.on
25/03/2022
JUDGMENT/ORDER uploaded on 25/03/2022
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