Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.3781/2019 ..1.. In S.C.Suit No.152/2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 3781 OF 2019
IN
S.C. SUIT NO. 152 OF 2018
CNR NO :- MHCC01-010253-2019
1. Mr. Dashrath Yashwant Kambli,
Age : 56 Years, Occ. : Service,
2. Mr. Mahesh Yashwant Kambli,
Age : 55 Years, Occ. : Service,
3. Mr. Harshad Bharat Kambli,
Age : 22 Years, Occ. : Service,
4. Mr. Prathamesh Bharat Kambli,
Age : 23 Years, Occ. : Service,
All Residing At : Flat No. 105,
1st Floor, ‘B’ Building, A-Wing,
Jai Hari Co-Operative Housing
Society Ltd., Sherichiwadi, Forjett
Street, Vasantrao Naik Marg,
Nana Chowk, Mumbai - 401 026.
5. Mrs. Rajani @ Asmita Atmaram Kokate,
Age : 58 Years, Occ. : Housewife,
Residing At : AT-Post - Nanivade,
Vani Wadi, Tal - Vaibhavwadi,
Dist. - Sindhudurga, Maharashtra.
6. Mrs. Vidya @ Shraddha Shrikant Sawant,
Age : 54 Years, Occ. : Housewife,
Residing At : AT-Post - Insuli,
(Kotwade Band), Tal - Sawantwadi,
Dist. - Sindhudurga, Maharashtra. ...Plaintiffs
Versus
1. Mr. Prashant Vijay Kambli,
Age : 28 Years, Occ. : Business,
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Notice of Motion No.3781/2019 ..2.. In S.C.Suit No.152/2018
2. Smt. Vanita Vijay Kambli,
Age : Adult, Occ. : Housewife,
Residing At : Flat No. 105,
1st Floor, ‘B’ Building, A-Wing,
Jai Hari Co-Operative Housing
Society Ltd., Sherichiwadi, Forjett
Street, Vasantrao Naik Marg,
Nana Chowk, Mumbai - 401 026. ...Defendants
Appearance :-
Mr. Sachin Mhaske, Advocate for the Plaintiffs.
Mr. Sushil M. Shukla, Advocate for defendants.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 3RD MARCH, 2021.
ORAL ORDER
The defendants have taken out this notice of motion praying
to set aside an order dated 04.09.2018 by which the suit was posted for
ex-parte evidence, to condone the delay of 390 days in filing the written
statement and also to condone the delay in taking out present notice of
motion.
2. In brief, the defendants’ case is that, on 04.09.2018 this Court
placed the suit for
ex-parte evidence. Defendants are mother and son
respectively. They are laymen and are not aware of legal proceedings
and procedure. Defendant No. 1 a widow and illiterate lady. Defendant
No. 2 is working as a driver to support himself and defendant No. 1.
The defendant No. 1 is suffering from depression since past more than
25 years and is working as maid. The delay caused in not filing written
statement is neither deliberate nor willful and it was owing to
ignorance, inadvertence, illiteracy and lack of knowledge of the
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Notice of Motion No.3781/2019 ..3.. In S.C.Suit No.152/2018
defendants. They had misplaced all the documents relating to the suit
premises and were unable to avail legal assistance. Defendant No. 1
was intermittently unwell and defendant No. 2 had to look after her.
Defendant No. 1 could not trace the documents and therefore there is
delay in filing written statement, though the copy of plaint was served
upon the defendant in February, 2018. The suit is between family
members who are legal heirs of late Smt. Saraswati Tukaram Kambli.
Defendants have good case on merits. However, they are not allowed to
answer the suit, grave harm, loss and injury will be caused to them.
They have come to know of said order recently.
3. The plaintiff has opposed the notice of motion claiming that
the defendants have come with unclean hands before the Court. They
are aware of legal procedure. They had filed suit No. 1457/2017 which
was disposed of by the Court on 24.04.2018. As per roznama dated
08.06.2018 advocate Shukla had appeared for the defendants and had
undertaken to file written statement and vakalatnama. On next date
defendant No. 2 was present and has sought time and on 08.06.2018
itself the case proceeded without written statement of the defendants.
When the matter was listed for
ex-parte evidence defendant No. 2 and
her advocate were present and vakalatnama was tendered on that day.
The defendants have come with false statement that the documents
were misplaced. No document is produced to substantiate that
defendant No. 1 was not keeping well. Defendant No. 2 has attended
the proceedings. The advocate in earlier suit and in present suit,
representing present defendants, is same and so the question of
misplacement of documents does not arise. The plaint is served upon
the defendants on 23.01.2018. Defendant No. 2 and his advocate have
appeared in the Court in Suit No. 1457/2017 on 06.02.2018 and
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Notice of Motion No.3781/2019 ..4.. In S.C.Suit No.152/2018
24.02.2018. The notice of motion is affirmed on 26.03.2019. The
advocate on record for defendant and the defendants have knowledge
of present proceedings and the orders passed by the Court. Still, they
were silent and did not take steps in time. The defendants do not have
good case on merits. Defendant No. 2 is harassing the plaintiff and his
family members for which several complaints are filed against him. No
justifiable reason is made out for setting aside the order. Defendants
have falsely stated that, they recently came to know about the order.
They have intentionally delayed the matter for more than two years.
The delay is not explained properly.
4. Perused. Heard.
5. Proceedings indicate that, the writ of summons is served on
the defendant on 26.03.2019. What appears is that, advocate for
defendants appeared on 08.06.2018 and sought time to file written
statement and vakalatnama. However, on next date i.e. on 04.09.2018
only defendant No. 2 appeared and requested the Court to grant time as
his advocate was not available. On same day the Court had passed an
order directing that the suit shall proceed without written statement of
the defendants. On very next date the advocate for defendants has filed
vakalatnama, but only for defendant No. 2. The next date thereafter
the advocate for defendants appeared and filed vakalatnama for both
the defendants as well as the present notice of motion.
6. Considering the circumstances revealing from the roznama of
this case from 08.06.018 to 23.06.2019, it is evident that it is a matter
of only 4 dates grant by the Court. On 04.09.2018 defendants could
not file the written statement as their advocate was not available on
that date.
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Notice of Motion No.3781/2019 ..5.. In S.C.Suit No.152/2018
7. The title of the plaint reveals that, defendant No. 1 is
admittedly a maid. This reveals the financial condition of the
defendants.
8. Considering the circumstances, flowing from
roznama and the
financial condition of the defendants, the delay on their part does not
appeared deliberate. This is so, as on 04.09.2018 they have informed
non availability of their advocate. Moreover, the defendants will not
gain anything by deliberately delaying filing of written statement and
by earning an order that will cause serious prejudice to them as the suit
would proceed without written statement and they would be precluded
from contesting the suit.
9. By and large the picture remains the same. When it goes to the
litigation the parties are dependent on advocate and without their
guidance and assistance, they cannot do anything in the proceedings.
Considering this aspect coupled with the circumstances revealing from
roznama the delay does not appear to be deliberately on the part of
defendants.
10. Though the defendants have come up with general grounds,
there is nothing to disbelieve those grounds as they appear to be
genuine. In an adversarial system it is always better to grant
opportunities to the parties to contest the case on merits. In this case,
considering the genuineness of the defendants, I am of the view that, an
opportunity can be granted them to file the written statement and to
contest the suit.
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Notice of Motion No.3781/2019 ..6.. In S.C.Suit No.152/2018
11. Though it is submitted by the advocate for plaintiffs that
defendants were aware of the legal procedure as they had filed another
suit against the plaintiff. Mere filing of the suit by a person does not
make such person well verse with the law and the procedure.
Moreover, when the earlier suit was also filed with the assistance of an
advocate. In such circumstances, the delay can be condoned. The
plaintiff can be compensated suitability by awarding the costs. Hence,
following order: -
ORDER
1. Notice of Motion No. 3781/2019 is allowed in
terms of prayer clause (a) to (c) subject to payment
of costs of Rs.2,000/- by the defendants to the
plaintiff.
2. On payment of costs by the defendants, the order
dated 04.09.2018 stands set aside.
3. Defendants shall file written statement on next date
without fail. Failing which further orders will
follow.
(AJIT N. MARE)
Judge,
Date : 03.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 03.03.2021
Transcribed on : 04.03.2021
HHJ Signed on : 05.03.2021
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Notice of Motion No.3781/2019 ..7.. In S.C.Suit No.152/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
05.03.2021 5.02 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 03.03.2021
Order signed by P. O. on 05.03.2021
Order uploaded on 05.03.2021
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