Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3826/2019 ..1..
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3826 OF 2019
IN
CHAMBER SUMMONS NO.1013 OF 2019
IN
SUIT NO.1912 OF 2012
Rekhadevi R. Sen .. Plaintiff
Versus
Hariparsad M. Verma .. Defendant
Ms. Hemangi Kamdar, advocate for plaintiff
Mr. Eknath Dhokale, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 16th October, 2019
ORAL ORDER
Notice of motion is taken out by defendant to set aside order
dated 26.07.2019 passed to the effect that, chamber summons No.1013
of 2019 is to proceed without reply against defendant.
2. It is the contention of defendant that plaintiff has filed aforesaid
chamber summons for amendment in the plaint and said matter was
kept on 26.07.2019 for reply of the said chamber summons. On
26.07.2019 due to heavy rains in Mumbai, advocate for defendant
could not appear before the Court and hence, could not file reply to
chamber summons. Consequently, impugned order was passed. It is
contended that in the interest of justice and fair trial relief as sought be
granted and no prejudice would be caused to plaintiff if such relief is
granted. Accordingly, defendant has made prayer in above terms.
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NM No.3826/2019 ..2..
3. Plaintiff filed affidavit in reply to notice of motion and opposed
it. It is contended that trains were properly working on the said date
and there was no direction from Hon'ble High Court to the effect that,
due to heavy rains no adverse order be passed in any matter against any
party. It is further contended that notice of motion is taken out to delay
the proceeding and accordingly it is prayed that notice of motion be
dismissed.
4. Perused notice of motion, affidavit in support of it and reply of
plaintiff. Heard respective counsel for parties.
5. It is pertinent to note that plaintiff has tendered draft chamber
summons on 20.04.2019. Thereafter, matter was adjourned from time
to time for reply of defendant to said chamber summons No.1013 of
2019. On 26.07.2019 said chamber summons was proceeded without
reply against the defendant. Present notice of motion has been taken
out by the defendant immediately on very next date i.e within the
prescribed period of limitation. This itself shows bona fide on the part
of defendant and his desire to contest the chamber summons on merits.
He acted promptly which suggest that he does not want to delay the
matter. Plaintiff has not denied that there were heavy rains on
26.07.2019 in Mumbai. That being so, there is no reason to disbelieve
the statement of defendant on oath that his advocate was not available
on said date due to heavy rains and consequently he could not file his
reply to chamber summons. Roznama dated 26.07.2019 also shows that
advocate for defendant was absent on that date and defendant himself
was present. Naturally when party has engaged advocate then he/she
depends upon his/her advocate to draft reply as per his/her
instructions. So, for absence of advocate for genuine reason party
should not suffer. In my view, reason assigned by the defendant is
sufficient to set aside impugned order and permit him to file reply to
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NM No.3826/2019 ..3..
chamber summons No.1013 of 2019. Therefore, in the interest of justice
and fair trial, I am inclined to allow notice of motion however,
considering the facts of matter it is necessary to impose certain costs
upon the defendant. Hence, pass following order :
ORDER
1. Notice of Motion No.3826 of 2019 is allowed and made absolute
in terms of prayer clause (a) subject to payment of costs of
Rs.500/ (Rupees Five Hundred only) to the plaintiff within
period of three weeks from the date of this order.
Defendant is at liberty to deposit costs payable to
plaintiff in the Court.
2. After payment of costs by the defendant his reply to chamber
summons No.1013 of 2019 be taken on record.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 16.10.2019 Gr. Bombay
Typed on : 16.10.2019
HHJ signed on :
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NM No.3826/2019 ..4..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.10.2019, 11.20 a.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
16.10.2019
JUDGMENT/ORDER signed by P.O.
on
17.10.2019
JUDGMENT/ORDER uploaded on 19.10.2019
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