Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.3657 OF 2019
IN
S.C. SUIT NO.2679 OF 2012
M/s. K. Mahadeo & Co. Pvt. Ltd. … Plaintiff
V/s.
Dwarkabai Ramchandra Kini & Ors. … Defendants
Appearances :
Ld. Adv. Kadam for plaintiff.
Ld. Adv. Babu for defendant no.1 to 5 and 11 to 23.
Ld. Adv. Nitesh Dubey for defendant no.81 (a to c).
Adv. Khushal Jadhavar for defendant no.50 to 55.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 13th NOVEMBER, 2019
ORDER
Defendant No.81 (a to c) have taken out this notice of
motion for taking written statement on record by setting aside no
written statement order dated 15.03.2019.
2. It is argued that they are added as party being legal heirs of
deceased defendant no.81. However during life time of defendant
no.81 there was no service of suit summons on her. Therefore, she was
not having knowledge of pendency of this suit. So also in July 2016
only plaintiff was well aware about demise of defendant no.81.
However, he has not promptly applied before the Court for bringing
legal heirs on record. There is inordinate delay in adding them as
party/defendants. Even plaintiff has avoided to tender complete
MHCC010 099872019
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compilation to these defendants. The pleadings were in respect of
several transactions way back in 1960 alongwith several parties and
several plots. Therefore, it has taken much time to prepare the written
statement. Therefore, they could not file written statement within time.
They have very good case in defence. As the delay is not intentional
one it may be condoned.
3. Ld. Counsel for plaintiff has resisted the application. It is
argued that defendant no.81 was duly served with suit summons.
However she has failed to appear. Moreover, on getting knowledge of
her demise these defendants were added as party. They could have
filed written statement in time. However, in order to delay the matter
they have not filed written statement in time. Therefore, now they may
not be allowed to file written statement.
4. The main grievance of these defendants is that their
Predecessor in title defendant no.81 was not duly served. However, it is
necessary to mention that this application is filed challenging the order
of no written statement passed against these defendants. Said order is
admittedly passed after their appearance. They have to account the
delay from their appearance. Therefore, whether original defendant
no.81 was duly served or not is not the point in issue for deciding this
application.
5. On the point of delay it is submitted that the pleadings and
allegations are regarding several parties and properties taken place in
the year 1960. Therefore, certain time is required for collecting the
information and data. This seems to be bonafide reason for these
defendants for not filing the written statement in time. Therefore it is
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not a case of intentional delay. Moreover as far as possible matter must
be decided on merit by giving full opportunity to the parties. Therefore
fair opportunity has to be given to these defendants. In case of delay
certain cost can be imposed. Accordingly the order.
ORDER
1. NM 3657/19 in SU 2679/12 is hereby allowed.
2. The no WS order dated 15/03/2019 passed against D81
(a to c) is hereby setaside on defendant paying cost of
Rs.2,000/ to plaintiff or to deposit it in the Court on or
before next date.
3. On compliance of cost order their WS may be taken on
record.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 13/11/2019 City Civil Court, Gr. Mumbai
Dictated on : 13.11.2019
Transcribed on : 14.11.2019
Signed on : 14.11.2019
sbk/
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14.11.2019 05.51 p.m. Sanjay Baliram Kaskar
(Stenographer Higher Grade)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
13.11.2019.
Judgement/order signed by P.O on 14.11.2019.
Judgement/order uploaded on 14.11.2019.
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