Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.2698/2019 ..1.. In S.C. Suit
No.1328/2017
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 2698 OF 2019
IN
S.C. SUIT NO. 1328 OF 2017
CNR NO : MHCC010091702019
Smt. Hemlata Eknath Bhoir,
Aged : 56 Years, Occu.: Housewife,
Residing At : A/705, Sai Aasha CHS.
Prataprao Gujar Road, Behind Holy
Angels High School, Near Neelam Nagar,
Phase 2, Mulund (W), Mumbai 400 081. ...Plaintiff
Versus
1. Mr. Vinayak Damodar Vaity (Deceased),
a. Smt. Jayshree Vinayak Vaity,
b. Neha Vinayak Vaity,
c. Harshal Vinayak Vaity,
All Residing At : 104 Gokul Buiding,
Gokul Marhura CHS., V. B. Phadke Road,
Near Vrundavan Dham D. Mulund (West),
Mumbai 400 081.
2. Mr. Chandrakant Damodar Vaity,
Residing At : 104 Gokul Buiding,
Gokul Marhura CHS., V. B. Phadke Road,
Near Vrundavan Dham D. Mulund (West),
Mumbai 400 081.
3. Mr. Mahendra Damodar Vaity,
Residing At : A/503, Sai Aasha CHS.
Prataprao Gujar Road, Behind Holy
Angels High School, Near Neelam Nagar,
Phase 2, Mulund (W), Mumbai 400 081.
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4. Mr. Vilas Damodar Vaity,
Residing At : A/201, Sai Aasha CHS.
Prataprao Gujar Road, Behind Holy
Angels High School, Near Neelam Nagar,
Phase 2, Mulund (W), Mumbai 400 081.
5. Mr. Ramesh Damodar Vaity,
Residing At : A/201, Sai Aasha CHS.
Prataprao Gujar Road, Behind Holy
Angels High School, Near Neelam Nagar,
Phase 2, Mulund (W), Mumbai 400 081.
6. Mrs. Devta Vishwanath Vaity,
Residing At : 2nd Floor, Gayatri Apartment,
Suryanagar, Badlapur (East). ...Defendants
Appearance :
Ms. Mailagir, Advocate for Plaintiff.
Ms. Vaibhavi Pawar, Advocate for defendants No.1 (a) to 1 (c), 2 & 5.
Ms. Seema Chopra, Advocate for defendant No.4.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 19TH JANUARY, 2021.
ORAL ORDER
By this notice of motion the defendant No. 4 has sought to
condone the delay of 522 days in taking out notice of motion, to set
aside the order dated 10.07.2018 directing that the suit to proceed
without written statement of defendant No. 4 and for permission to file
the written statement on record.
2. Defendant No. 4 has come with the case that, in the suit for
declaration and partition she was represented by advocate for
defendant No. 1 and 2. The Writ of summons was served on
11.12.2017.
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3. On 19.12.2017 Advocate for plaintiff had undertaken to
supply copy of all documents to the advocate for defendants. The
documents were received by the advocate for defendant No. 4 only on
10.07.2018. During September defendant No. 4 could not pass on
instructions to her advocate due to festival season. She intended to
change the advocate and obtained no objection from the advocate. On
04.10.2018 she, through her advocate, sought time to file written
statement but the Court proceeded without written statement of
defendants. On 07.01.2019 her advocate sought time to file written
statement. However, the matter was referred for mediation.
Subsequently, the mediation failed and on 18.06.2019 present notice of
motion was moved. There is no deliberate or willful default in not filing
the written statement. The advocate could not prepare written
statement for want of documents. The change of advocate and the
mediation process also delayed filing of written statement. Defendant
No. 4 intends to support the plaintiff and so if the motion is allowed not
harm will be caused to the plaintiff.
4. The Plaintiff has opposed notice of motion on the ground
that defendant No. 4 has raised false claim of receiving documents on
10.07.2018. On the contrary the documents were received by her
advocate on 19.12.2017 itself. Defendant No. 4 has not made out
sufficient cause for making an application within limitation, she could
have filed written statement even during mediation process. She was
not prevented by sufficient cause and so the motion is devoid of merits.
5. Perused. Heard.
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6. Proceedings do indicate that, the writ of summons was
served on defendant No. 4 on 11.12.2017. She had appeared through
her advocate on scheduled date i.e. on 19.12.2017 and the advocate for
plaintiff had undertaken to supply the copy of all the documents on the
advocate for defendant. On 10.07.2018 the affidavit was filed by
advocate for plaintiff stating that all the documents were served on
advocate for defendant on 19.12.2017 itself. The acknowledgment to
that effect was also produced.
7. The plaintiff has also produced the copy of such
acknowledgment with her reply to notice of motion indicating that
advocate for defendant No. 4 has received all the documents on
19.12.2017 itself. Thus for all practical purposes the defendant No. 4
was served on 19.12.2017. However, the written statement is not filed
within 30 days thereafter. No extension was sought, after 30 days
period was over, to file the written statement. No explanation is given
why written statement was not filed till almost 7 months after the
complete service on the defendants. The affidavit in support of notice
of motion raised a false claim that, the documents were served on
10.07.2018 which is opposed to the record before the Court. There is
no explanation as to why even thereafter within 30 days the written
statement was not filed. The explanation is about the month of
September, 2018. There is no acceptable explanation for not filing the
written statement from 19.12.2017 till 10.07.2018. Even thereafter
notice of motion is not taken out within a time prescribed. Though it is
contended that defendant No. 4 engaged another advocate, her
advocate appeared before the Court only on 07.01.2019. Prior to that
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advocate appeared for defendant No. 4, but still the notice of motion
was not filed from July, 2018 till January, 2019. The affidavit in
support of notice of motion does not make out acceptable explanation
for the same. Proceedings indicate that parties were referred to
mediation on 07.01.2019 and the mediation subsequently failed.
However, since there is no explanation given by defendant No. 4 for not
filing the written statement within prescribed time and for not taking
out notice of motion within prescribed time, the subsequent
circumstance, of reference of parties to the mediation is no ground to
condone the delay.
8. No doubt the Court has to be liberal in condoning the
delay, but that is for the reasons properly explained, if the reasons
pressed into service is primafacie not acceptable and if the person
approaching the Court makes false statement, then such person cannot
be given any assistance by the Court.
9. The contention of defendant No. 4 that, she is supporting
the plaintiff, if her notice of motion is allowed, also is no ground to
allow her to file the written statement.
10. Looking to the facts and circumstances of this case coupled
with the conduct of defendant No. 4, I hold that no case is made out by
defendant No. 4 to condone the delay, to set aside no WS order passed
against her and to allow her to file written statement on record. Hence,
following order:
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ORDER
1. Notice of Motion No. 2698/2019 is dismissed.
2. Defendant No. 4 to bear the costs.
(AJIT N. MARE)
Judge,
Date : 19.01.2021 City Civil Court, Gr. Mumbai.
Dictated On : 19.01.2021
Transcribed on : 19.01.2021
HHJ Signed on : 21.01.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
21.01.2021 3.28 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
19.01.2021
Order signed by P. O. on 21.01.2021
Order uploaded on 21.01.2021
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