Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.3897/2019
MHCC010107282019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3897 OF 2019
IN
S. C. SUIT NO.475 OF 2019
(CNR NO.MHCC01-002247-2019)
Mr. Shrenok Voridasji Shah )...Plaintiff
Versus
Mr. Nilesh Vasantrao Chaudhary )...Defendant
Appearances :-
Learned Advocate Sanjay Prabhala for plaintiff.
Learned Advocate Ashutosh Shukla for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15
DATE : 03/08/2023.
ORDER
1 This notice of motion is taken out by the defendant for
condonation of delay of 145 days in filing written statement,
contending that the defendant is residing at Dhankhari, Tal.-Roha, Dist.-
Raigad. Upon receipt of writ of summons, he appeared and engaged an
advocate from local area to appear before this Court and all the papers
-- 1 of 4 --
..2.. NM No.3897/2019
were handed over to the concerned advocate, who did not prepare the
written statement on time, therefore, said delay is caused. Now he
engaged another advocate, who prepared the written statement and
wants to file the written statement to contest the matter, hence, this
notice of motion.
2 Plaintiff resisted the contention by filing reply, contending
that the reason mentioned is not proper, the delay is not properly
explained. Mere mentioning in the notice of motion is baseless, the
delay is about 190 days and hence, prayed for rejection of notice of
motion.
3 Heard learned advocate for defendant. The learned
advocate for plaintiff has tendered written notes of argument.
4 The right to file written statement and raise defence is a
substantial right. Filing written statement within stipulated time is a
procedural aspect. The omission on the part of the defendant to follow
procedural time frame would not preclude him to avail substantial
right. Moreover, it is the contention of the defendant that his advocate
of local area has committed omission in preparation of written
statement. Thus, it is well settled that the party should not suffer for the
acts and omission committed by the advocate. It is also well settled that
the matter should be decided on merits. Considering the legal position
of law, I am of the view that as an abundant precaution, the defendant
deserves to be given an opportunity to raise his defense for filing
written statement. Hence, I proceed to pass the following order :-
-- 2 of 4 --
..3.. NM No.3897/2019
ORDER
1. Notice of motion No.3897/2019 in S. C. Suit
No.475/2019, is hereby allowed.
2. Delay stands condoned.
3. Written statement already filed, be exhibited.
4. Notice of motion disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 03/08/2023 C.R. No.15
Dictated on : 03/08/2023
Transcribed on : 04/08/2023
Signed on : 05/08/2023
-- 3 of 4 --
..4.. NM No.3897/2019
“Certified to be true and correct copy of the original signed order”.
05/08/2023
at about 05.51 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 03/08/2023
Order signed by Hon'ble Judge on : 05/08/2023
Order uploaded on : 05/08/2023
at about 05.51 p.m.
-- 4 of 4 --