Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 4160/22 in S.C.Suit No. 2292/21. 1 Order.
MHCC010120142022
Presented on : 07-11-2022
Registered on : 07-11-2022
Decided on : 01-03-2024
Duration : 1 years, 3 months, 23 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4160 OF 2022
IN
SHORT CAUSE SUIT NO. 2292 OF 2021
Shri Jitendra Ravji Rampariya )...Plaintiff
Versus
Mr. Vilas Rambhau Chaudhari )...Defendant
Shri E.K.Sasidharan, Advocate for the defendant.
Shri Atul Redkar, Advocate for the plaintiff.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 1st MARCH, 2024.
ORDER
1. The defendant has taken out the notice of motion for
setting aside order dated 23/06/2022 by which the suit was kept for ex-
parte hearing and for condonation of delay of 233 days in filing the
written statement.
2. Perused notice of motion, reply filed by the plaintiff. Heard
both advocates at length.
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N/m No. 4160/22 in S.C.Suit No. 2292/21. 2 Order.
3. The contention of the defendant that writ of summons was
served on his wife on 15/02/2022, at that time he was out of Mumbai
for medical treatment for slip disc and related neurological problems.
His wife forgot to inform him about the service of summons when he
came to Mumbai. In September, 2022 he had to rush to his native place
as his elder sister expired at native place and after few days his brother-
in-law also expired, therefore he could not return to Mumbai to meet
his advocate to take steps in the matter. The defendant was admitted in
Lilavati Hospital, Mumbai on 20/01/2021 for spinal cord operation and
was discharged on 25/01/2021. Even after the operation he was not
fully cured of the problems as there is lack of proper blood supply to his
legs and hence unable to stand up or sit down properly. The defendant
further alleged that he is also suffering from heart ailments and under
treatment from Dr. Chonkar’s Chaitanya Heart & Brain Center, Mulund,
Mumbai. Due to all these reasons, there was delay of 233 days in filing
written statement. Delay was neither deliberate nor intentional,
therefore prayed for condonation of delay.
4. The plaintiff resisted the notice of motion by filing affidavit
in reply on record. It is alleged by the plaintiff that the notice of motion
is misconceived without cause of action and bad in law. The plaintiff
denied that due to health issues of the defendant delay was caused. No
medical papers are filed on record to show that defendant was critically
ill. The defendant is just delaying the proceeding of suit. The defendant
inspite of knowing and having knowledge failed to file written
statement within stipulated time. There are no sufficient grounds for
condonation of delay. Therefore not entitled for relief prayed.
5. The delay can be condoned if it is brought on record that
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N/m No. 4160/22 in S.C.Suit No. 2292/21. 3 Order.
there is sufficient cause for not filing written statement within time
limit. If the sufficient cause is shown and if it is found that delay is not
intentional, deliberate and so as to frustrate the claim of the plaintiff,
then delay can be condoned. In case at hand, the contention of the
defendant that defendant being a senior citizen and suffering from
various health problems, he could not file written statement within
time.
6. The Hon’ble Supreme Court in Suo Moto Writ Petition No.
3/2020 held that it is directed that due to Covid-19 and pandemic there
are restrictions on the working of the Court, therefore the period from
15/03/2020 till 28/02/2022 shall stand excluded for the purpose of
limitation as may be prescribed under any general or special law in
respect of judicial or quasi judicial proceedings.
7. There is a delay of 233 days. The record shows that the
delay is not intentional or deliberate. It is nowhere come on record that
by delaying the matter defendant wants to cause harm or loss to the
plaintiff. Thus, in my opinion, if delay is not condoned, the defendant
will lose right to contest the suit or to protect his legal rights forever. On
the other hand, if delay is condoned and defendant permitted to file
written statement on record, plaintiff will suffer a loss but it can be
compensated in terms of money. Therefore, in my opinion, delay needs
to be condoned and defendant can be permitted to file written
statement on record subject to some cost. Considering this, I pass
following order :
- ORDER -
1. Prayer clause (a) and (b) of Notice of Motion No. 4160/2022 is
made absolute subject to cost of Rs.2,000/-.
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N/m No. 4160/22 in S.C.Suit No. 2292/21. 4 Order.
2. The defendant is directed to pay cost to the plaintiff or deposit in
this court within six weeks from the date of this order, after payment of
cost, written statement be read and recorded.
3. N/m No. 4160/2022 is disposed off accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 01/03/2024. Mumbai.
1. Dictated online on : 01/03/2024.
2. Placed for correction on : 06/03/2024.
3. Checked on : 12/03/2024.
4. Correction carried on : 13/03/2024.
5. Signed on : 13/03/2024.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13/03/2024. 2.53 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 01/03/2024.
Judgment/Order signed by P.O. on 13/03/2024.
Judgment/Order uploaded on 13/03/2024.
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