Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3516 OF 2019
(CNR NO. MHCC010095702019)
IN
LONG CAUSE SUIT NO. 2337 OF 2018
Mr. Diwakar Vishwanath Surve ... Plaintiff
V/s.
Municipal corporation of
Greater Mumbai and Ors. ...Defendants
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI ( C.R.NO.06)
DATE : 18/04/2022
Adv.Mr. Kudalkar for the plaintiff.
Adv.Mr. Sandesh Daphatare for defendant No.3.
Adv.Ms. Meena Dhuri for the defendant No.1/BMC.
ORAL ORDER
1. This Notice of Motion is taken out by defendant No.3 to
condone the delay of 43 days in filing written statement and permission
to file written statement.
2. The plaintiff has filed reply to the same and strongly
opposed the notice of motion.
3. Perused the Notice of motion and say. Heard the learned
Advocates for the parties at the length.
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4. It is contended by the defendant no.3 that copy of plaint
and annexures thereto have not been served upon defendant no.3. The
copy of plaint and annexures served upon him on 22.06.2019. It is
further contended by the defendant no.3 that after perusing the copy of
plaint and annexures thereto it was required to trace necessary
documents with respect to the suit structure and impart necessary
instructions from advocate to present written statement. Moreover,
defendant no.3 was suffering from high fever, he could not gather
required documents in prescribed period of 30 days for filling written
statement and was unable to tender his written statement. Hence, there
is delay of 43 days in filing the written statement. Therefore, delay
caused is not deliberate or willful.
5. The procedure as to limit for filing written statement and
consequences of not filing the same are given in Order 8 of Civil
Procedure Code. Order 8 Rule 10 of the C.P.C., has laid down a
procedure about passing of a decree in favour of the plaintiffs, if
defendants fail to file his written statement. This discretion is not
exercised by the court in favour of the plaintiffs for the reason of failure
of defendants to file their written statement.
6. In this background, if the defendants are allowed to file
their written statement, it will not cause any prejudice to either plaintiff
or to the overall hearing of this suit. If these defendants is allowed to
file written statement and if the suit decreed in favour of the plaintiffs,
it would be a decree on merit. On the other hand, if the defendants are
not allowed to file their written statement, it would result into a decree
which would be technically exparte decree. Therefore, this court is of
the opinion that evidence of the plaintiff has not commenced and
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therefore, defendants should be allowed to file their written statement
in order to enable this court to decide the suit on merit.
7. There is one more reasonable important point that the
written statement is filed after the period of 90 days of the service of
summons/notice. The written statement along with this application is
being filed after the period of 90 days. However, this court is of the
opinion that for the stated reasons the defendants are to be allowed to
file their written statement. Filing of written statement by this
defendants beyond the prescribed period of time framed has not caused
any serious prejudice to the plaintiff. Hence, the order.
ORDER
1. The Notice of Motion No.3516/2019 is allowed.
2. Delay of 43 days is condoned in the interest of justice.
3. Defendant No.3 is granted permission to file
written statement in the interest of justice.
4. The Notice of Motion No.3516/2019 is disposed off.
(Smt. S.G.Shaikh)
Date18/04/2022 Judge,City Civil Court,
Gr.Mumbai.
Dictated on : 18/04/2022
Typed on : 18/04/2022
Signed on :
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4 N/M No.3516/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/04/2022 05.00 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
18/04/2022
JUDGMENT/ORDER signed by
P.O.on
18/04/2022
JUDGMENT/ORDER uploaded on 18/04/2022
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