Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.3576 of 2019
CNR:MHCC01-009749-2019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.3576 OF 2019
IN
L.C.SUIT NO.1592 OF 2018
Amit Vasant Kamat .. Plaintiff
V/s.
The Brihan Mumbai Mahanagar Palika
and another. .. Defendants
Appearance:-
None for plaintiff.
Adv. Vidya Vyavahare for MCGM/defendant No.1.
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 07/11/2023.
ORDER
This notice of motion is taken out by the defendant No.2
for condonation of delay of 315 days in filing the written statement and
for taking her written statement on record.
2 After considering the submissions of both sides, I have
carefully gone through the facts and circumstances on record. It is the
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contention of the defendant No.2 that she is aged about 73 years. She is
living alone and nobody is there to look after her. On certain occasions,
she was not keeping well and she is suffering from severe polyarthritis
with backache and due to which she was unable to get up from the bed.
She is not well qualified. In view of these circumstance, delay occurred
in filing her written statement on record.
3 On the other hand, the learned advocate for the plaintiff
strongly resisted the notice of motion mainly on the ground that no
plausible reasons are put forth by the defendant No.2. There is delay of
more than 90 days. Entire story put forth by the defendant No.2 is false
and imaginary. It is, therefore, vehemently submitted that the notice of
motion is liable to be dismissed.
4 Having regard to the submissions of both the sides, it
reveals that the defendant No.2 has also filed copy of medical certificate
to show that she was suffering from severe polyarthritis with backache
and she was advised rest till she recovers fully. Apart from the copy of
medical certificate, contentions in the notice of motion are duly
supported by the affidavit of the defendant No.2. In fact, in the plaint, it
is not disputed that the defendant No.2 is aged about 70 years.
Therefore, considering all the circumstances, in my view, even if there is
long delay in filing the written statement, having regard to the old age
of the plaintiff, no reason appears to disbelieve the reasons put forth by
the defendant No.2 which prove that she was prevented for sufficient
cause and the circumstances were beyond control due to which she
could not file her written statement within the period prescribed under
Rule 1 of Order VIII of the Code of Civil Procedure. Therefore, it is
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necessary to grant opportunity to the defendant No.2 to contest the suit
by participating in the proceeding by allowing her to file the written
statement on record. In fact, the plaintiff can be compensated by
awarding reasonable costs for delay caused by the defendant No.2 in
filing her written statement. In the result, following order is passed.
ORDER
1 Notice of Motion No.3576 of 2019 is allowed subject to
costs of Rs.1,500/-.
2 Delay in applying for filing the written statement is
condoned and the defendant No.2 is permitted to file her written
statement on record subject to payment of costs either to the plaintiff or
to his advocate or to deposit the same in the Court on or before next
date.
3 Notice of Motion No.3576 of 2019 is hereby disposed off
accordingly.
Date: 07/11/2023. ( R. M. Mishra )
Judge, City Civil Court,
Gr.Mumbai.
Directly Typed on :07/11/2023.
Signed on :07/11/2023.
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4 N.M.No.3576 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08/11/2023 3.00 p.m. (Ms. Sonali S. Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
07/11/2023.
JUDGMENT/ORDER signed by P.O.on 07/11/2023.
JUDGMENT/ORDER uploaded on 08/11/2023.
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