Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3415/2019 in
S.C. Suit No.9726/1990. 1 Order.
MHCC010093242019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3415 OF 2019
IN
S.C. SUIT NO. 9726 OF 1990
( High Court Suit No. 943 of 1990)
Mrs. Shakuntala Himanchal Singh Sengar ...Plaintiff
V/s.
1. Mrs. Prabhavati Ramsingh Thakur
(Deleted since deceased)
2. Smt. Kamladevi Swatantrakumar Singh
& Others
... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 11/07/23
Appearance:-
Ld. Advocate Shri. Jay Yadav I/b J.R. Vakil & Associates for the plaintiff.
Ld. Advocate Shri. Ashokkumar B. Rastogi for defendant Nos. 2 and 3.
Ld. Advocate Shri. V.R. Tripathi for defendant No.5.
Ld. Advocate Shri. Anil Mishra a/w Ld. Advocate Shri. U.V. Singh for
defendant No. 7.
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NM No.3415/2019 in
S.C. Suit No.9726/1990. 2 Order.
Ld. Advocate Shri. S.P. Patankar for defendant Nos. 9 and 10.
ORDER
1. Defendant No.7 has taken out this notice of motion for
setting aside no written statement order dtd.29.11.1995 and
03.04.1996 and permitting her to file written statement. Plaintiff and
defendant No.5 filed affidavits in reply and strongly opposed the notice
of motion.
2. I have heard Ld. Advocate for defendant No.7, Ld. Advocate
for plaintiff and Ld. Advocate for defendant No.5.
3. Plaintiff has filed Suit No. 9726 of 1990 for partition of
1/11 shares of the suit property, wherein Flat No. 28 situated at Sanjog
Co-op Hsg. Soc. Pherozshah Road, Santacruz (West), Mumbai is one of
the suit properties. Plaintiff and defendants are inter-se relatives.
Defendant No.7 is sister of plaintiff. Suit was initially filed in Hon’ble
High Court and when the suit was pending before the Hon’ble High
Court, defendant No.7 was represented by Advocate Shri. Rastogi and
thereafter, Advocate Shri. Rodrigues. Advocate Shri. Rastogi made
statement before the Hon’ble High Court on 29.11.1995 that defendant
No.7 supported plaintiff and she do not want to file written statement.
Similarly, the statement was made by the Advocate Shri. Rodrigues
appearing for the defendant No.7 on 03.04.1996 before the Hon’ble
High Court. On the basis of these statements, no written statement
order came to be passed against the defendant No.7. Now she wants to
set aside said order and therefore, present notice of motion is moved.
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NM No.3415/2019 in
S.C. Suit No.9726/1990. 3 Order.
4. Advocate for the defendant No.7 argued that, initially
plaintiff and defendant No.7 were having good relations and defendant
No.7 was not against the partition. Therefore, defendant No.7 did not
contest the suit by filing written statement. Plaintiff had appointed
Advocate Shri. Rodrigues, whose vakalatnama were sent to the native
place of defendant No.7 in State of U.P. and she only signed the
vakalatnama. She never came at Mumbai and appeared in the suit.
Therefore, she was not aware that, Flat No. 28 is included as a suit
property for partition in the present suit. In fact, Flat No.28 was not
available for partition, as it was originally owned by the father of
plaintiff and defendant No.7. During his life time he transferred the
same in the name of defendant No.7. Thereafter, defendant No.7
acquired the ownership of the said flat. Concealing this fact, plaintiff
brought suit flat in common hotchpot for partition. After defendant
No.7 came to know this fact, she moved this notice of motion with the
intention to contest the suit by filing written statement. Advocate for
the defendant No.7 also argued that documents regarding ownership of
the flat in the name of defendant No.7 are annexed with the affidavit in
support of notice of motion. Plaintiff was under bonafide impression
that, properties left by father except the Flat No.28 are brought for
partition. Considering these facts and circumstances, Advocate for the
plaintiff prayed to allow the notice of motion and set aside no written
statement order dtd. 29.11.1995 and 03.04.1996.
5. Per contra, Advocates for the plaintiff and defendant No.5
submitted that, there is huge delay of 23 years for seeking the order of
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NM No.3415/2019 in
S.C. Suit No.9726/1990. 4 Order.
setting aside no written statement order. This delay is not satisfactorily
explained. There is no document to show that, how defendant No.7
became owner of the Flat No.28. Not only the evidence of plaintiff but
also the evidence of defendant No.5 is over and at very belated stage
defendant No.7 moved this notice of motion. They further pointed out
that, consent terms were filed in the suit prior to 10 years and
defendant No.7 was aware that, Flat No.28 is brought in common
hotchspot for partition, still she remained silent and not taken steps at
that time to get set aside no written statement order and to file written
statement. In these circumstances, no written statement order cannot
be set aside and they prayed to dismiss the notice of motion.
6. I have considered the submissions of both the parties and
perused records. It is the matter of record that, initially the present suit
was filed before the Hon’ble High Court bearing High Court Suit No.943
of 1990 and subsequently, it is transferred in City Civil Court. The
orders dtd. 29.11.1995 and 03.04.1996 annexed with the notice of
motion shows that, Advocate Shri. Rastogi appeared for defendant No.7
and defendant Nos. 2,3, 4 and 6 on 29.11.1995 and submitted before
the Hon’ble High Court that all these defendants supports the plaintiff
and they do not want to file any written statement. Similarly, on
03.04.1996 Advocate Shri. Rodrigues appeared for defendants including
defendant no.7 and submitted that these defendants support the
plaintiff and they do not want to file written statement. On the basis of
these submissions, no written statement orders were passed on
respective dates against the defendant No.7 and others. Though it is
argued that, the plaintiff and defendant no.7 were having cordial
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NM No.3415/2019 in
S.C. Suit No.9726/1990. 5 Order.
relations and plaintiff sent vakalatnama of Advocate Shri. Rodrigues at
the native place of defendant No.7 in the State of U.P. and she only
signed the vakalatnama, but there is no any documents to substantiate
this contention. Moreover, as per the affidavit of defendant No.7,
consent terms were filed prior to 10 years and there was attempt of
settlement between the plaintiff with same defendants. This goes to
show that, the defendant No.7 was aware about filing of suit and flat
no. 28 was brought in common hotchpot for partition. Hence, it is not
acceptable that, defendant No. 7 was not aware that Flat No.28 was
brought for common hotchpot for partition.
Advocate for defendant No.7 relied on various documents to
show that, the said Flat No.28 is in the name of defendant No.7, but
duplicate share certificate was issued on 15.05.2009 is showing the
name of the Shri Ramsingh Devrajsingh (father of plaintiff and
defendant No.7) as a holder of share certificate and the owner of flat.
Though, one certificate issued by the office bearers of housing society
and maintenance bills are in the name of defendant No.7, but there is
no document to show that, how defendant no.7’s name appearing in the
record of society or the suit flat is transferred in the name of defendant
No.7. Apart from this, the fact remains that initially the suit flat was in
the name of deceased father of plaintiff and defendant No.7. Bringing
the said flat in common hotchpot for partition is the fact known to
defendant No.7 at least after attempt was made for final consent terms
prior to 10 years in the year 2009. Despite having such knowledge,
defendant No.7 had not attempted to move the notice of motion for
setting aside no written statement. Now, after 23 years defendant no.7
is seeking setting aside no written statement order without giving any
plausible explanation about such huge delay. It also appears from the
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NM No.3415/2019 in
S.C. Suit No.9726/1990. 6 Order.
record that evidence of plaintiff is over and matter is fixed for cross-
examination of defendant No.5 since last three years. In such
circumstances, defendant no.7 cannot permitted to file written
statement by setting aside no written statement order dtd. 29.11.1995
and 03.04.1996, which were passed on the basis of submissions made
by the respective advocates appearing for defendant No.7. For these
reasons, I pass following order:
- ORDER -
Notice of Motion No.3415 of 2019 is dismissed and disposed off,
accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date :11.07.2023 Gr. Bombay.
1. Dictated on : 11.07.2023
2. Transcribed on : 11.07.2023
3. Checked and Signed on : 11.07.2023
4. Delivered to Certified :
Copy Section on
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NM No.3415/2019 in
S.C. Suit No.9726/1990. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11.07.2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 11.07.2023
Judgment/Order signed by P.O. on 11.07.2023
Judgment/Order uploaded on 11.07.2023
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