Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3778 OF 2019
IN
S. C. SUIT NO. 181 OF 2019
(C.N.R. No. MHCC01-010250-2019)
Kamalaprasad Devdutta Yadav ] ..Plaintiff.
V/s.
Anandi Sunil Borade and Ors. ] ..Defendants.
Advocate Mr. Kuldeep Singh for the plaintiff.
Advocate Ms. Nikita Lad for defendant No.1/State.
Advocate Mr. Vishwajit Sagare for defendant No.2/SRA.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 31st JANUARY 2024
ORAL ORDER
Defendant No.2 has taken out present Notice of Motion for
setting aside ex-parte order dated 25.09.2019 passed against defendant
No.2 and for directing the plaintiff to serve writ of summons to
defendant No.2 and to allow defendant No.2 to file his written
statement on record and for condonation of delay in filing written
statement.
2. In short, it is contention of defendant No.2 that defendant
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No.2/Slum Rehabilitation Authority in the Planning Authority on
implementation of Slums Rehabilitation Projects. Office of defendant
No.2 had received copy of suit on 05.02.2019 through notice dated
29.01.2019 by plaintiff’s advocate. However, writ of summons was
never served as per Order V, Rule 1 of Code of Civil Procedure, 1908.
Further, due to illness of advocate of defendant No.2, advocate for
defendant No.2 could not remain present before the Hon’ble Court on
the dates of hearing and therefore, ex-parte order has been passed
against defendant No.2. Defendant No.1 has good case on merits and if,
defendant No.2 is not allowed to file written statement on record, great
prejudice and irreparable loss will be caused to defendant No.2, hence,
prayed for allowing Notice of Motion.
3. Plaintiff has filed affidavit in reply to the Notice of Motion
overleaf and strongly opposed the same by submitting that defendant
No.2 was duly served by private notice. Despite of service, defendant
No.2 failed to appear and hence, ex-parte order came to be passed
against defendant No.2. There are no valid grounds for setting aside
ex-parte order. Hence, prayed that Notice of Motion be rejected.
4. Perused Notice of Motion, affidavit in support of Notice of
Motion as well as reply filed by plaintiff. The following points arise for
my determination and I have recorded my findings to them for the
reasons stated below.
Sr.
No.
POINTS FINDINGS
1 Whether defendant No.2 has made out case
for setting aside the ex-parte order and for
condonation of delay?
In the
Affirmative.
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2 What order? As per the final order.
R E A S O N S
AS TO POINT NO.1 :
5. Heard Ld. Advocate for both the sides. It appears that
defendant No.2 was duly served by the plaintiff. Despite of service of
summons, defendant No.2 failed to appear and hence, ex-parte order
came to be passed on 25.09.2019. It can be seen that defendant No.2 is
a Public Authority established under provisions of Maharashtra Slums
Areas Act. It is submitted that defendant No.2 has good case on merits.
It further appears that delay is not deliberate and intentional. The
grounds mentioned in the Notice of Motion appears to be genuine. The
defendant No.2 needs to be given opportunity to file written statement
on record. No prejudice will be caused to the plaintiff, if the Notice of
Motion is allowed. Hence, I hold that Notice of Motion deserves to be
allowed. In the result, I proceed to pass the following order:-
ORDER
1. Notice of Motion No. 3778 of 2019 is hereby
made absolute.
2. Delay caused in taking out Notice of Motion is
condoned and ex-parte order dated 25.09.2019
passed against defendant No.2 is hereby set aside
and defendant No.2 is allowed to file his written
statement on record.
3. Plaintiff is directed to serve Writ of Summons to
defendant No.2 afresh.
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4. Notice of Motion No. 3778 of 2019 is disposed of
accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 31.01.2024 Gr. Bombay.
Dictated on : 31.01.2024
Transcribed on : 01.02.2024
Signed on : 01.02.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
01.02.2024 At 4.50 p.m. Ms. Manisha D. Hirole
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
31.01.2024
Judgment/Order signed by P.O. on 01.02.2024
Judgment/Order uploaded on 01.02.2024
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