Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010100092019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3672 OF 2019
IN
LONG CAUSE SUIT NO. 2947 OF 2014
Mrs. Anjali W/o.Prakash Gore ... Plaintiff
V/s.
Municipal Corporation of
Greater Mumbai ...Defendant
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI ( C.R.NO.06)
DATE : 24/09/2021
Adv. Ms. Sana Khan for the plaintiff.
Adv. Ms. Deepali Patil for the defendant.
ORAL ORDER
1. This Notice of Motion is taken out by the Municipal
Corporation /defendant to set aside hearing without affidavitinreply
and written statement order and permission to file affidavit inreply
and written statement.
2. The plaintiff has filed reply to the same and strongly
opposed the notice of motion.
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3. Perused the notice of motion and reply of the plaintiff.
Heard advocates for the parties at the length.
4. It is contended by the defendants that it was unable to file
its written statement and affidavit in reply in time due to heavy work
load being a public body. Therefore , delay was caused for filing
affidavit in reply and written statement.
5. The defendants intend to file their written statement and
affidavit in reply by getting set aside hearing without reply and Written
Statement order passed against it. The question is whether these
defendants should be allowed to file their written statement and
affidavit in reply at this stage.
6. The procedure as to limit for filing written statement and
affidavitinreply and consequences of not filing the same are given in
Order 8 of Civil Procedure Code. Order 8 Rule 10 of the C.P.C., has laid
down a procedure about passing of a decree in favour of the plaintiffs, if
defendants fail to file his written statement. This discretion is not
exercised by the court in favour of the plaintiffs for the reason of failure
of defendants to file their written statement.
7. In this background, if the defendants are allowed to file
their written statement and affidavit in reply by setting aside no written
statement order passed against him, it will not cause any prejudice to
either plaintiff or to the overall hearing of this suit. If these defendants
is allowed to file written statement and affidavit in reply and if the suit
decreed in favour of the plaintiffs, it would be a decree on merit. On the
other hand, if the defendants are not allowed to file their written
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statement and affidavit in reply, it would result into a decree which
would be technically exparte decree. Therefore, this court is of the
opinion that evidence of the plaintiff has not commenced and therefore,
defendants should be allowed to file their written statement and
affidavit in order to enable this court to decide the suit on merit.
8. There is one more reasonable important point that the
written statement is filed after the period of 90 days of the service of
summons/notice. The written statement along with this application is
being filed after the period of 90 days. However, this court is of the
opinion that for the stated reasons the defendants are to be allowed to
file their written statement and affidavit in reply. Filing of written
statement and affidavit in reply by this defendants beyond the
prescribed period of time framed has not caused any serious prejudice
to the plaintiff. Hence, the order.
ORDER
1. The Notice of Motion No.3672/2019 is allowed.
2. Hearing without affidavitinreply and written statement
order passed against the defendants is set aside and
defendants are granted permission to file their affidavit in
reply and written statement in the interest of justice .
3. The Notice of Motion No.3672/2019 is disposed off.
(Smt. S.G.Shaikh)
Date24/09/2021 Judge,City Civil Court,
Gr.Mumbai.
Dictated on : 24/09/2021
Typed on : 24/09/2021
Signed on :
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4 N/M No.3672/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24/09/2021 05.30 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
24/09/2021
JUDGMENT/ORDER signed by
P.O.on
24/09/2021
JUDGMENT/ORDER uploaded on 24/09/2021
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