Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3343/2019 ..1.. Suit No.3224/2018
CNR No.MHCC010091632019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3343 OF 2019
IN
SUIT NO.3224 OF 2018
Rita Govind Pherwani and another .. Plaintiffs
Versus
Dilip Madhavdas Pherwani and others .. Defendants
Ms. Sanjana Das, advocate for plaintiff
Mr. Tejas Mahamuni, advocate for defendant Nos.6 to 10
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 16th October, 2019
ORAL ORDER
Notice of motion is taken out by defendant Nos.6 to 10 for
condoning the delay caused in filing written statement and to take the
same on record.
2. It is the contention of defendant Nos.6 to 10 that, parties to the
suit were referred to mediation on or about 09.10.2018 and mediation
process lasted from 09.10.2018 to 10.06.2019. It is contended that writ
of summons was never served upon these defendants and plaintiffs
were directed vide order 07.07.2019 to serve writ of summons to other
defendants through bailiff but till date writ of summons has not been
served upon these defendants. Due to aforesaid facts written statement
was not filed on record. It is further contended that delay caused is not
intentional and present suit filed is for partition of property and in case
-- 1 of 4 --
NM No.3343/2019 ..2.. Suit No.3224/2018
opportunity is given to these defendant to contest the matter on merits
then same will assists and enable this court to adjudicate the matter
effectively. Accordingly, they prayed in above terms.
3. Plaintiffs opposed notice of motion by filing their reply on
affidavit through plaintiff No.2. It is contended that defendants have
not satisfactorily explained delay. They have not demonstrated valid
and or exceptional reason for not filing written statement within 30
days. Accordingly, they prayed for dismissal of notice of motion.
4. Perused notice of motion, affidavit in support of it and reply of
plaintiffs. Heard learned counsel for parties. They advanced their
arguments in accordance with respective submissions of parties.
5. Before adverting to the facts of the present matter, I would like
to mention that it is a settled law that Order VIII Rule 1 of CPC is not
mandatory and in specific circumstances written statement can be
accepted with reasons. It is also held that in an adversarial system, no
party should be denied an opportunity in participation of the justice
dispensation system (Salem Bar Association V/s Union of India 2003
AIR SCC 189 and Zolba V/s Keshav 2008 AIR SCC 2099). In view of
this legal position, now, I consider notice of motion.
6. It is pertinent to note that these defendants appeared in the
matter on 09.10.2018 and copy of plaint has already been served upon
these defendants. Now they are estopped from saying that writ of
summons has not been served upon them so, they could not file written
statement within time. In view of their appearance in the matter writ of
summons stands waived against them. May it be so, on 22.10.2018
-- 2 of 4 --
NM No.3343/2019 ..3.. Suit No.3224/2018
matter was referred for mediation and mediation report was received
on 11.03.2019 intimating that mediation has failed. Possibility could
not be ruled out that these defendants being involved in the process of
mediation forgotten to file written statement within prescribed time. It
is pertinent to note that suit filed is for partition of property and
considering the nature of suit, it would be unjust to deprive these
defendants from contesting the matter on merits merely on technical
count of delay caused in filing of written statement by them. It cannot
be said that delay caused is to protract trial. They have already annexed
written statement which show their bonafide to participate in the
matter and their desire for progress of the matter. In the above
circumstances, I am inclined to condone the delay caused in filing of
written statement and to take the same on record. However,
considering the facts of matter it is necessary to impose certain costs
upon these defendants. Hence, pass following order:
ORDER
1. Notice of motion No.3343 of 2019 is allowed and made absolute
in terms of prayer clauses (a) and (b) subject to payment of
costs of Rs.5000/ (Rupees Five Thousand only) to plaintiffs
within period of three weeks from the date of this order.
Defendant Nos.6 to 10 are at liberty to deposit costs
payable to plaintiffs in the Court.
2. After payment of costs, written statement of defendant Nos.6 to
10 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 16.10.2019 Gr. Bombay
Typed on : 16.10.2019
HHJ signed on :
-- 3 of 4 --
NM No.3343/2019 ..4.. Suit No.3224/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.10.2019, 11.20 a.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
16.10.2019
JUDGMENT/ORDER signed by P.O.
on
17.10.2019
JUDGMENT/ORDER uploaded on 19.10.2019
-- 4 of 4 --