Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3656-19 in S.C.Suit no.7478-2005
H.C.Suit no. 3048/05 Old BCC L.C.Suit No. 3263/92
1 Date :15.02.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3656 OF 2019
IN
S.C. SUIT NO. 7478 OF 2005
H.C.SUIT NO. 3048 OF 2005
OLD BCC L.C. SUIT NO. 3263 OF 1992
(CNR MHCC01 0099732019 )
The Parsi Central Association & Ors. .. Plaintiffs
Versus
Anjani Kisan Mehta & Ors. .. Defendants
Appearances :
Adv. Ravi Shivajirao Irle a/w Adv. Neha Dhuru for plaintiff.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 15.02.2020
ORDER
1. The defendant no. 1(a) and (b) have filed instant Notice of
Motion seeking following reliefs :
(a) That this Hon’ble Court be pleased to condone the delay,
if any, in taking out the present Notice of Motion and the
order dated 27.09.2018 be set aside.
(b) That this Hon’ble Court be pleased to set aside the pursis
filed by the defendant no. 1(a) dated 03.12.2018, Exhibit
– 5 and permit the defendant no. 1(a) to file her written
Statement to the amended plaint.
(c) That such other and further reliefs as the nature and
circumstances of the case may require, be granted.
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2. It is contended by the defendant that original defendant no.
1 died in the month of March, 2015. They have been brought on
record vide order dated 02.02.2018 passed in Chamber Summons
No. 1711 of 2016. They were served with the amended copy of
plaint on 20.02.2018 and thereafter the matter was fixed for
Additional Written Statement on various occasions. The defendant
in order to represent them, have appointed Advocate Ms. Hemangi
Kuber to appeared on their behalf and also instructed to prepare
Written Statement. The defendant further submitted that they
were in process of collecting new documents. Further the
advocate was irregular, therefore, she was forced to appear in
person in the matter.
3. It is submitted by the defendant that inspite of specific
instructions, the defendant failed to file Written Statement. She
was forced to appear, therefore, on 03.12.2018, due to absence of
advocate and due to her non comprehension of legal procedure
and misconception of law, she filed pursis, adopting earlier
Written Statement filed by original defendant no. 1.
4. It is submitted by the defendant that she got various
documents which are required to be produced before Court in
order to determine the controversy in the present suit. Therefore,
it is necessary that separate Written Statement be filed on record
on behalf of defendant no. 1(a) and (b). She has submitted that
she has obtained various documents under Right to Information
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Act, which was crucial to be brought on record which suggest that
42% of plots are in Dadar Parsi Colony are of Parsi Zorostrian
Community only. This record shows that majority of plots in
Dadar Parsi Colny have non parsi as lessees or owners.
5. It is submitted by the defendant that as her previous
advocate was not appearing, therefore, she has engaged the
present advocate. Whereupon, she came to know that on
27.09.2018, this Court has passed order to proceed without
Written Statement against defendant no. 1(a). However, the
aforesaid order get nullified vide Roznama dated 03.12.2018,
whereby she has filed pursis, adopting Written Statement and
allowed by the Court. However, in order to avoid any technical
objection in future, it is necessary that the order dated 27.09.2018
directing to proceed without Written Statement against the
defendant needs to be set aside.
6. It is submitted by the defendant that she is Senior Citizen
and unable to understand minute procedure and details of the
Court. He could not file the present Notice of Motion at earlier
point of time. She further submitted that if the present Notice of
Motion is allowed no prejudice, harm, loss, damage will be caused
to the plaintiff. However, if the same is not allowed, grave
prejudice, harm, loss, damage will be caused to her which can not
be compensated in terms of money. Thus, defendant prayed for
allowing present Notice of Motion.
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7. The Notice of Motion is opposed by the plaintiff by filing
reply. It is contended by the plaintiff that the instant Notice of
Motion is absolutely abuse of process of Court, misconceived, not
maintainable. The defendant no. 1(a) have made false statement
on oath. Her advocate Mrs. Hemangi was duly appearing in the
matter and sought time to file Written Statement. Inspite of that
the defendant made false statement that her advocate was not
appearing. It is submitted by the plaintiff that the defendants were
duly served with the amended plaint, much prior in time. Now she
can not raise any defences beyond those already raised by the
original defendant no.1. Inspite of that there is huge delay in
tendering the Written Statement. The defendant herself willingly
filed pursis adopting Written Statement filed by the original
defendant no. 1. Therefore, she is refrained from filing any
additional Written Statement.
8. It is further submitted by the plaintiff that the defendant is
trying to delay the matter and with such intention, filed instant
Notice of Motion. It is further alleged by the plaintiff that in past
defendant no. 1 sought time on various occasions on the ground of
pendeny of the Writ Petition before Hon’ble High Court in respect
of Guardianship of defendant no. 1(b). Therefore, the plaintiff
prayed for dismissal of the Notice of Motion with heavy cost.
9. Heard both the sides. Perused Notice of Motion, reply as
well as pleadings of the parties. The plaintiff filed instant suit for
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declaration that the residence used and occupation of defendant
no. 1 and 2 who are nonparsi Zorostrian, is in breach and defeats
the object and purpose of deed of covenant dated 22.03.1927 and
Lease Deed dated 19.03.192. The original defendant no. 1 who
was the father of defendant no. 1(a), filed his Written Statement.
10. It is specific defence of the defendant that there are other
nonparasis who are lessee or owners residing in the Parsi Colony.
During pendency of the suit, the original defendant no. 1 expired
in the month of March 2015 and defendant no. 1(a) and 1(b) were
brought on record vide, order dated 02.02.2018. It is not in
dispute that the amended plaint was served upon the defendants
on 20.02.2018.
11. It is specific case of the defendants that they were
represented by the earlier advocate Mrs. Hemangi. However, she
did not take any steps to file Written Statement inspite of specific
instructions were given to her. She obtained several information
under Right to Information Act which shows that certain plot
owners or lessors are non parsis who are residing in the Parsi
Colony. Therefore, she was desirous of filing additional Written
Statement. However, her advocate did not take any steps to that
effect and subsequently, she did not appear in the matter.
12. I have perused Rozanama, more particularly dated
29.08.2018 whereby, the defendant no. 1(a) and 1(b) were
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granted last chance to file Written Statement and the matter was
adjourned to 27.09.2018. On 27.09.2018, the advocate Ms.
Hemangi Kuber had appeared in the matter. However, as the
Written Statement was not filed, therefore, Court proceeded
without Written Statement of defendant no. 1(a) and 1(b).
Thereafter, the matter was adjourned to 03.12.2018 for draft
issues. On that day the advocate Ms. Hemangi Kuber appeared.
The defendant in person was present and she has filed pursis Exh.
5 adopting Written Statement filed by original defendant no. 1.
13. From the aforesaid Roznama, it appears that the day when
defendant no. 1(a) had filed pursis adopting Written Statement of
defendant no. 1, she was not guided by the advocate. Therefore,
as per her own understanding, she has filed the aforesaid pursis.
The record shows that the earlier advocate Hemangi Kuber
obtained adjournment time to time on the ground of filing of
Written Statement. However, the Written Statement could bot be
filed.
14. It is argued by Ld. Advocate for Khare for defendant that due
to the lapse on the part of the advocate, the client should not be
suffered. In support of his submission he has relied on the
judgment of Hon’ble Apex Court reported in (1981) 2 Supreme
Court Cases 788 in case of Rafiq and Anr. v/s. Munshilal & Anr.
15. In the aforesaid judgment the Hob’ble Apex Court in the Para
No. 3 of its judgment observed that “The disturbing feature of the
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case is that under our present adversary legal system where the
parties generally appear through their advocates, the obligation of
the parties is to select his advocate, breif him, pay the fees demanded
by him and then trust the learned advocate to do the rest of the
things. The party may be a villager or may belong to a rural area
and may have no knowledge of the court’s procedure. After engaging
a lawyer, the pary may remain supremely confident that the lawyer
will look after his interest. The problem that agitate us is whether it
is proper that th party shoul suffer for the inaction, deliberate
omission, or misdemeanor of his agent. The answer obviously is in
the negative. May be that the learned advocate absented himself
deliberately or intentionally. We have no material for ascertaining
that aspect of the matter. We say nothing more on that aspect of the
matter. However, we can not be a party to an innocent party
suffering injustice merely because his chosen advocate defaulted.
16. The Ld. Advocate for the plaintiff vehemently argued that
the defendant made baseless allegations against the sincere
advocate who had appeared in the proceedings on several
occasion. The defendant made false statement that her advocate
could not appeared.
17. On perusal of the entire Roznama, there is no doubt that the
advocate Ms. Hemangi had appeared in the matter but on the day
when defendant no. 1(a) filed pursis adopting Written Statement,
she was not guided by the advocate. Moreover, time to time the
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advocate Ms. Hemangi only sought adjournment and had
appeared with nothing has been done. In my view, looking to the
aforesaid facts, the defendant should not be suffered for inaction
of her advocate.
18. It is further argued by the Ld. Advocate Khare for the
defendant that defendant obtained several document under Right
to Information Act which are essential to place on record. By way
of additional Written Statement, the defendant is not placing any
inconsistent or contrary stand taken by the original defendant no.
1 in its Written Statement. He has further argued that even if it is
inconsistent stand, but as per law it is permissible for the
defendant to take inconsistent stand.
19. It is further argued that at the time of considering
application for additional Written Statement and even amendment
in Written Statement, the Court has to take liberal approach as the
criteria for amendment in Written Statement and amendment in
plaint are totally different. Moreover, the defendant by way of
additional Written Statement, is not taking any contradictory stand
rather, it is in addition which it is necessary to brought on record.
20. In support of his submission ld. Advocate relied on Hon’ble
Apex Court in cases of Sumtibai & Ors. V/s. Paras Finance Co. &
Ors. reported in (2007) 10 Supreme Court Cases 82 wherein the
Hon’ble Apex Court held that “Every party in a case has a right to
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file a Written Statement. This is in accordance with natural justice.
The appellant had already been made parties in the suit and it would
be strange if they were not allowed to take a defence. Merely because
some applications under Order 1 Rule 10 for their impleadment had
been rejected earlier does not mean that the legal representatives not
be allowed to file an additional Written Statement. In fact, no useful
purpose would be served by merely allowing these legal
representatives to be impleaded but not allowing them to file an
additional Written Statement. That would clearly violate natural
justice.”
21. The defendant further relied on judgment of Hon’ble Apex
Court in case of Baldev Singh & Ors. V/s. Manohar Singh &
Anr. reported in (2006) 6 Supreme Court Cases 498, wherein
the Hon’ble Apex Court held that “adding a new ground of defence
or substituting or altering a defence does not raise the same problem
as adding, altering or substituting a new cause of action. Therefore,
inconsistent defences can be raised in the Written Statement although
the same may not be permissible in case of the plaint.”
22. The Hon’ble Apex Court further held that in case of
amendment of Written Statement, the Courts are inclined to be
more liberal in allowing the amendment of the Written Statement
than of the plaint and question of prejudice is less likely to
operate with same regure in the former than in the later case.
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23. The Ld. Advocate for defendant further relied on the
judgment Hon’ble Madras High Court in case of Muthuramu &
Anr. V/s. A. muthulakshmi & Anr. and Judgment in case of
K.Jagan & Anr. V/s. Armugam wherein the Hon’ble High Court
held that “Court must be liberal in permitting additional Written
Statement, same cannot be rejected on ground of delay or on ground
that trial had commenced. The Court has to see whether additional
Written Statement is contrary to original Written Statement. Court
should not be rigid in its approach. Additional Written Statement
sought to be filed is not contrary to original Written Statement.
Court below ought to have permitted to file Additional Written
Statement.”
24. I have perused the above judgments as well as the Written
Statement filed by the original defendant. It is well settled law
that the mere delay is not sufficient to refuse to allow the
amendment of pleadings or filing of additional Written Statement.
At the same time delay is no ground of dismissal of application
under Order 8 Rule 9 of the CPC, where no prejudice is caused to
party opposing such amendment of acceptance of additional
written Statement which can easily to be compensated by cost.
25. Moreover, the provisions of order 8 Rule 9 of CPC does not
speak that no application for receiving additional Written
Statement should be allowed after trial has been commenced. The
order 8 Rule 9 of CPC gave wide discretion to the Court to give
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chance to party to agitate their rights even raising subsequent plea
for which the Court shoul not be rigid and the Court should
exercise their discretion liberally when it does not affect the right
of the parties. (Olympic Industries V/s. Mulla Hussainu Bhai
Mulla Akbarali reported in 2009 (7) MLJ 1081 (SC).)
26. The Hon’ble Madras High Court in case of Muthuraman
V/s. Muthukumaran, reported in 2007 (5) CTC 722 wherein it is
held that “The object of filing of Additional Written Statement is to
supply what might have been omitted in the Written Statement filed
earlier and the Additional Written Statement can be allowed, if it is
not likely to cause prejudice to the plaintiff. The Court should grant
permission to the defendant for filing subsequent pleadings if they are
so relevant to prove the facts placed before the court by the
defendant, which cause no prejudice to the plaintiff even in the
absence of any claim or set of or counter claim.
27. Thus, in my view, the defendant by way of additional
Written Statement are not trying to take any other ground than the
Written Statement filed by the original defendant no. 1, rather the
defendant wanted to strengthen their defence by placing
additional Written Statement and information which they have
received under Right to Information Act which, strengthen their
defence. In my view, by allowing the defendant to file additional
written Statement, no prejudice would be caused to the plaintiff.
Thus, in view of the aforesaid discussion, in my view, Notice of
Motion needs to be allowed.
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28. As far as regarding, setting aside of order dated 27.09.2018
is concerned, by which my Predecessor proceeded without Written
Statement of the defendant. In my view, the subsequent order
allowing defendant to treat the Written Statement of defendant
no. 1 would have effect of nullifying the earlier order. Hence, the
present Notice of Motion needs to be allowed. Thus, I proceed to
pass the following order :
ORDER
1. Notice of Motion No. 3656 of 2019 is hereby allowed in
terms of prayer clause (a) and (b).
2. Defendants to bear cost of Notice of Motion.
3. Notice of Motion No. 3656 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 15.02.2020 Greater Bombay.
Dictated on : 15.02.2020
Typed on : 15.02.2020
Draft Submitted on : 15.02.2020
Checked on : 24.02.2020
Signed on : 24.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/02/2020 at 3.45 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
15/02/2020
JUDGMENT/ORDER signed by P.O.
on
24/02/2020
JUDGMENT/ORDER uploaded on 24/02/2020
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