Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.3493-19
MHCC010095332019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3493 OF 2019
IN
S.C. SUIT NO. 3908 OF 2013
Ramlakhan Ramsahay Gupta ] ..Plaintiff.
V/s.
Jitlal Ramlutavan Gupta and Ors. ] ..Defendants.
Appearance :
Advocate Mr. C.S. Lamba h/f Advocate R.R. Khosala for the plaintiff.
Advocate Mr. D.N. Mishra for defendant No.1.
Advocate Mr. Bhandari h/f Adv. Trivedi for defendant No.2/SRA.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 13th DECEMBER 2023
ORAL ORDER
The defendant No.1 has taken out present Notice of Motion
for condonation of delay in filing Written Statement and for setting
aside no “WS” order.
2. It is the contention of the defendant No.1 that the plaintiff
has filed suit No.3908/2013 against him and the plaintiff had taken out
Notice of Motion in the said suit. Defendant No.1 had filed his affidavit
and reply to the said Notice of Motion. The Notice of Motion of plaintiff
is heard and disposed off. It is further contended that, defendant No.1
-- 1 of 5 --
2 NM No.3493-19
was served with writ of summons on 18.12.2013. The plaintiff is real
uncle of defendant No.1, therefore, he approached plaintiff and
requested to withdraw the suit, as plaintiff had filed present suit inspite
of knowing the fact that, defendant No.1 is lawfully entitled for the suit
premises. The plaintiff assured defendant No.1 that he will withdraw
the suit since it is family matter and they wanted that their relations be
cordial. But till date plaintiff has not kept his words and failed and
neglected to withdraw the suit on one pretext or other. Defendant No.1
could not file written statement under impression that the plaintiff will
keep his word and withdraw the suit. Due to false promise given by the
plaintiff, defendant No.1 could not file his written statement in time and
therefore, delay of 1705 days has been caused for filing written
statement. There is no negligence and malafide intention for not filing
written statement in time. No prejudice whatsoever will be caused to
the plaintiff if Notice of Motion is allowed. Hence, defendant No.1
prayed for allowing the Notice of Motion.
3. Plaintiff filed reply to the Notice of Motion of defendant
No.1 and strongly opposed the same. It is submitted that the Notice of
Motion is filed beyond statutory period and at belated stage and is
liable to the dismissed with costs. In the matter, plaintiff has filed his
affidavit of examination-in-chief alongwith list of documents and matter
is listed for admissibility of documents. Defendant No.1 is not entitled
to divert the Court proceedings anti clockwise in this matter. Moreover,
there is huge delay in taking out present Notice of Motion. The grounds
are not justifiable as plaintiff never promised defendant No.1 to
withdraw the suit as alleged by him. The Notice of Motion is devoid of
merits and is liable to be dismissed with costs.
-- 2 of 5 --
3 NM No.3493-19
4. Perused Notice of Motion and affidavit filed in support of
his Notice of Motion. Also perused reply filed by the plaintiff to the
Notice of Motion. Heard Ld. Advocates for both the parties at length.
The following points arise for my determination and I have recorded my
findings to them for the reasons stated below.
Sr.
No.
POINTS FINDINGS
1 Whether the defendant No.1 is entitled for
condonation of delay and for setting aside
no “WS” order ?
In the
Affirmative
2 What order? As per the final order
R E A S O N S
AS TO POINT NO.1 :
7. From rival submissions and from record of the case, it
appears that initially defendant No.1 had appeared and also filed his
reply to the Notice of Motion taken out by the plaintiff. Said Notice of
Motion was heard and disposed off. However, defendant No.1 failed to
file his written statement, hence, no “WS” order came to be passed
against defendant no.1. It is contention of the defendant No.1 that
plaintiff is real uncle and he promised defendant No.1 to withdraw the
suit for maintaining cordial relations in the family. Relying upon the
words of plaintiff, defendant No.1 had not filed “WS”. However, plaintiff
did not keep his promise and did not withdraw the suit. Hence,
defendant No.1 has taken out present Notice of Motion. Now, though
the plaintiff has denied the contention of defendant No.1 that he had
promised to withdraw the suit and contested that there are no
justifiable grounds for condonation of huge delay of 1705 days,
-- 3 of 5 --
4 NM No.3493-19
considering the facts of the case and in order to adjudicate rights of the
parties, finally on merit, it would be just and proper in the interest of
justice to give an opportunity to the defendant No.1 to represent his
case. No doubt there is huge delay in taking out Notice of Motion
which has caused delay in the matter and which has caused prejudice to
the plaintiff. However, same can be compensated by imposing
appropriate costs upon defendant no.1. Hence, I hold that delay caused
in taking out Notice of Motion needs to be condoned and no “WS” order
passed against defendant No.1 dated 02.05.2017 is liable to be set
aside. Hence, I answer point No.1 in the affirmative and proceed to
pass the following order :-
ORDER
1. Notice of Motion No.3493 of 2019 is hereby made
absolute.
2. No “WS” order dated 02.05.2017 is hereby set
aside. Delay caused in taking out the Notice of Motion
is condoned subject to costs of Rs.3,000/- to be paid
by defendant No.1 to the plaintiff on or before next
date.
3. After payment of cost, written statement of the
defendant No.1 be taken on record.
4. Notice of Motion No.3493 of 2019 is disposed off
accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 13.12.2023 Gr. Bombay.
Dictated on : 13.12.2023
Transcribed on : 13.12.2023
Signed on : 13.12.2023
-- 4 of 5 --
5 NM No.3493-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20.12.2023 At 12.12 p.m. MRS. SHRAVANTI KARRE
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
13.12.2023
Judgment/Order signed by P.O. on 15.12.2023
Judgment/Order uploaded on 20.12.2023
-- 5 of 5 --