Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3397/2019 ..1.. Suit No.1637/2019
CNR No.MHCC010092842019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3397 OF 2019
IN
SUIT NO.1637 OF 2019
Mrs. Shaila Vishram Boricha and another .. Plaintiffs
Versus
Mrs. Jaainnatunisha Kamal Ansari and another ..Defendants
Mr. C. J. Chauhan, advocate for plaintiffs
Mr. Sartaj Pathan, advocate for defendant No.1
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 22nd November, 2019
ORAL ORDER
Notice of motion is taken out by defendant No.1 to condone
delay caused in filing of written statement and to take the same on
record.
2. It is the contention of defendant No.1 that writ of summons was
served upon her on 16.07.2019. Due to her serious sickness she has to
take regular treatment because of which she could not contact her
advocate to file written statement. Therefore delay has been caused in
filing of written statement. Accordingly, she made prayer in above
terms.
3. Plaintiffs opposed notice of motion on the count that motion is
not supported by documents.
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4. Perused notice of motion, affidavit in support of it and reply of
plaintiffs. Heard respective counsel for parties.
5. 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. There is no reason to disbelieve contention of defendant No.1
made on affidavit that she is suffering from serious illness and she has
to take regular treatment because of which she could not contact her
advocate for drafting written statement. More so, delay caused cannot
be said to be deliberate and inordinate. Notice of motion is taken out
within period of 90 days from the date of writ of service of summons.
This itself shows that defendant No.1 does not want to protract the
matter. Therefore, in the interest of justice and equity I am of the view
to give an opportunity to defendant No.1 to contest the matter on
merits. Hence I am inclined to allow notice of motion.
ORDER
1. Notice of Motion No.3397 of 2019 is allowed and made absolute
in terms of prayer clauses (a) and (b).
2. Defendant No.1 is directed to file her written statement within
period of two weeks from the date of this order.
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3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 22.11.2019 Gr. Bombay
Typed on : 22.11.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
23.11.2019, 3.40 p.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
22.11.2019
JUDGMENT/ORDER signed by P.O.
on
23.11.2019
JUDGMENT/ORDER uploaded on 23.11.2019
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