Final Order 1

Order Details: Chamber summons
Pdf Text: CS. 1744/2019 IN SUIT.1403/2018 1
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.1744 of 2019
IN
SUMMARY SUIT NO.1403 of 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR NO.MHCC01- 009836-2019)
Mullti Marketing ...Plaintiff
Versus
Seth Metal, ...Defendant
Appearances:-
Advocate Ms.Priti Gada for the Plaintiff.
Advocate Mr.Ram Kutwal for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 20th February 2020
O R D E R
1. By this Chamber Summons the defendant requested to condone
the delay caused to tender the vakalatnama. The plaintiff resisted the
chamber summons. Heard Ld. advocates on behalf of both the parties.
Perused the record.
2. The Ld. advocate on behalf of the defendant argued that in
January 2019 the defendant had given the vakalatnama to the
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advocate. However, on 06/03/2019 the advocate was held up in Sewree
court. Thereafter, as there was delay to apply for leave to defend notice
of motion was filed to condone the delay for leave to defend.
Thereafter, it was noticed on 24/07/2019 that the vakalatnama on
behalf of the defendant is not filed on the record. Thereupon, the
defendant filed the vakalatnama. There is no intentional delay.
Therefore, he requested to accept the vakalatnama on record.
3. On the other hand, Ld.advocate on behalf of the plaintiff argued
that since inception the defendant has been trying to delay the matter.
The delay caused is of 304 days and not of 170 days as contended by
the defendant. There is no satisfactory explanation of the delay. The
conduct of the defendant may be taken into consideration. Such
litigants should not be encouraged therefore, she requested to reject the
chamber summons.
4. The record reveals that the summons was served on the
defendant on 14/12/2018. The defendant vide chamber summons
No.83/2019 prayed for condonation of delay of 16 days in filing the
vakalatnama. The then presiding officer allowed the same chamber
summons by order dated 04/02/2019. Thus, the defendant had already
appeared and by allowing the chamber summons No.83/2019 the court
also accepted appearance of the defendant. The present dispute is
regarding delay caused to tender the vakalatnama. However, what order
37 Rule 3 contemplates is an appearance of the defendant. Once this
court accepted the chamber summons and allowed without any
condition of costs, it has to be held that the court accepted the
appearance of the defendant. Filing of vakalatnama on record is a
formality showing authorization by the client to an advocate to
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represent him. Appearance and filing of vakalatnama are different
things. In this background, once the appearance is accepted submission
of the vakalatnama is a formality. It may be said that by order on
chamber summons No.83/2019 the appearance of the defendant was
accepted but the formality of filing of vakalatnama remained to be
complied. In these circumstances, and in the interest of justice, it is just
and proper to allow the vakalatnama on record. Of course, the
vakalatnama has not been filed immediately after passing of order on
chamber summons 83/2019. However, the plaintiff can be compensated
in terms of money for such delay.
5. The advocate for plaintiff also argued that earlier chamber
summons 83/2019 was also for similar relief. Therefore, present
chamber summons is barred by principle of res-judicata. She relied on
Ishwar Dutt Vs. Land Acquisition Collector (2005) 7 S.C.C.190,
I have carefully gone through the decision in the case of 'Ishwar
Dutt' the Hon'ble supreme court held that the principle of res-judicata is
applicable to different stages of same proceeding. Thus, the principle of
res-judicate is applicable even in respect of chamber summons. There is
no duality of opinion regarding the same principle. However, in the
case in hand, vide order in the chamber summons No.83/2019 the court
already allowed appearance of the defendant. The formality of filing of
vakalatnama in respect of authority of the advocate had remained to be
complied. Thus, in substance the appearance had already come on
record. By filing the vakaltnama only the authority of the advocate will
be taken on record. Thus, the factual scenario is different. Therefore,
with respect to the decision in the given case is not applicable to the
case in hand.
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6. In view of this discussion, the chamber summons deserves to be
allowed subject to costs. Hence, order as follows is passed.
ORDER
1. The Chamber Summons No.1744/2019 is allowed as under:-
2. The vakalatnama filed on behalf of the defendant be accepted on
record subject to costs of Rs. 2000/-(Rs.Two Thousand Only) to be paid
to the plaintiff by defendant.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 20/02/2020 City Civil Court,Gr. Mumbai
Dictated on : 20/02/2020
Signed on : 24/02/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
25/02/2019 at 1.15p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 20/02/2019
Judgment/Order signed by P.O. on 24/02/2019
Judgment/Order uploaded on 25/02/2019
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