Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3578/2019 ..1.. Suit No.1151/2019
CNR No.MHCC010097552019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3578 OF 2019
IN
SUIT NO.1151 OF 2019
Mrs. Rani Umesh Parab .. Plaintiff
Versus
M/s. Chaitya Developers and Another .. Defendant
Ms. M.M. Salooja, advocate for plaintiff
Mr. S. S. Redekar, advocate for defendant No.2
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 19th November, 2019
ORAL ORDER
Notice of motion is taken out by defendant No.2 for condoning
delay caused in filing written statement and to treat affidavit in reply
filed by him to notice of motion No.3071 of 2018 as his written
statement.
2. It is the contention of defendant No.2 that he came to know
about present case when plaintiff served Advocate's notice upon him.
Then he appeared through his advocate and his advocate asked about
entire proceedings. Consequently, advocate for plaintiff served copy of
proceedings to his advocate. Present matter was sent for mediation but
it was failed. Thereafter matter was listed on board for 19.01.2019 and
this court refused to grant adinterim relief in favour of plaintiff.
Plaintiff removed office objection in the month of February, 2019.
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3. It is further contended that he has filed his detailed reply on
09.04.2019 to notice of motion No.3071 of 2019 taken out by plaintiff.
Writ of summons has not been properly served upon him. On
28.08.2019 he has filed pursis to treat affidavit in reply filed by him to
notice of motion No.3071 of 2018 as his written statement. However,
this Court directed him to take appropriate proceeding. Accordingly, he
has taken out present notice of motion seeking prayers in above terms.
4. Plaintiff opposed notice of motion on the count that it is not
within limitation and prayed to dismiss it.
5. Perused notice of motion, affidavit in support of it, reply of
plaintiff and record and proceeding in present matter. Heard respective
counsel for parties.
6. 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.
7. In present matter defendant No.2 appeared through his
advocate on 13.08.2018 and on same date matter was referred for
mediation. It was adjourned for mediation report from time to time and
on 25.09.2018 mediation report was received and as per said report,
mediation failed. Thereafter on request of plaintiff, matter was
adjourned for removal of office objection. As per order 22.02.2019 suit
came to be registered. Defendant No.2 filed his reply to notice of
motion on 09.04.2019. Thereafter matter was adjourned for hearing on
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NM No.3578/2019 ..3.. Suit No.1151/2019
notice of motion. Notice of motion No.3078 of 2019 came to be
decided on 16.07.2019. On 28.08.2019, defendant No.2 filed pursis to
the effect that reply to notice of motion is to be treated as written
statement. At that time liberty was granted to him to take appropriate
proceeding for the purpose of treating reply as written statement. When
it is admitted by the defendant No.2 that proceedings have been served
upon him on appearance before the Court then his contention of non
service of writ of summons is not of much significance and service of
proceedings upon defendant no.2 on his appearance in the matter
amounts to dispensing service of writ of summons upon him. Although
defendant No.2 prayed for treating his reply as written statement but
even his reply is not filed within prescribed period. May it be so, in the
facts of matter, in the interest of justice and equity it is unjust to deprive
defendant No.2 from contesting the matter on merit. Hence, I am
inclined to allow present notice of motion by imposing certain costs
upon defendant No.2. Hence, pass following order.
ORDER
1. Notice of Motion No.3578 of 2019 is allowed and made absolute
in terms of prayer clauses (a) & (b) subject to payment of costs
of Rs.2000/ (Rupees Two Thousand only) to plaintiff within
period of two weeks from the date of this order.
Defendant No.2 is at liberty to deposit the costs payable
to plaintiff in the Court.
2. On deposit of costs, affidavit in reply filed by defendant No.2 to
notice of motion No.3071 of 2018 be treated as his written
statement and it be marked exhibit.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 19.11.2019 Gr. Bombay
Typed on : 19.11.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21.11.2019, 5.30 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
19.11.2019
JUDGMENT/ORDER signed by P.O.
on
20.11.2019
JUDGMENT/ORDER uploaded on 21.11.2019
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