Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO. 3904 OF 2019 in S.C.Suit No.2850/2013
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3904 OF 2019
IN
S. C. SUIT NO. 2850 OF 2013
Sunila Chhotelal Pal. ]..Plaintiffs
V/s
Deputy District Collector and Anr. ]..Defendant
Advocate Mr. Bharat Chaudhari for defendant No.1.
Advocate Ms. Chandramore for BMC/defendant No.2.
Advocate Mr. V. R. Tripathi for the plaintiff.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 18th JUNE, 2020
ORAL ORDER
This notice of motion is taken out by the defendant no.1/
State asking the relief that since the plaintiff has not served the letter of
request/Suit Summons on the defendant No.1 within stipulated period
as per Section 27 of the Code of Civil Procedure and Rule 55 of the
Bombay City Civil Court Rule, the suit be dismissed. In the alternative,
the defendant No.1 has prayed that the no written statement order
passed on 20.09.2019 be set aside and the defendant No.1 be allowed
to file its written statement.
2. The plaintiff has resisted this Notice of Motion by filing
reply contending that the defendant No.1 has failed to file its written
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statement within stipulated period and there is no just ground shown to
condone the delay to file written statement. Therefore, the no written
statement order passed on 20.09.2019 is legal and proper and there is
no sufficient cause shown to set it aside.
3. Heard the learned advocates for both the parties and
perused Record and Proceedings. The suit is against the State
represented by the Deputy District Collector and B.M.C. challenging the
notice for demolition of disputed construction dated 01.03.2013. The
suit was instituted on 15.05.2013 with leave of the Court without
issuing notice under section 80 of the C.P.C. The ad-interim injunction
against the alleged demolition was sought, but it was refused as the
notice under section 80(2) of C.P.C. was ordered to be issued against the
defendants returnable on 12.06.2013. On 12.06.2013, Advocate Mr.
Sutar appeared on behalf of the defendant No.2/BMC. Advocate Mr.
Bharat Chaudhari appeared for defendant No.1/State on 12.07.2013.
The plaintiff tendered draft Chamber Summons on 14.02.2014, which
was registered as Chamber Summons No.561/2014 on 21.02.2014.
The Chamber Summons was heard and decided on 28.06.2016. The
plaintiff was allowed to carry out the amendment in the plaint, whereby
she brought on record the subsequent event of demolition of the
disputed construction. There was another Chamber Summons No.2643
of 2014, but it was dismissed. The amendment was carried out and the
matter was fixed for service of amended copy of the plaint on the
defendants. The plaintiff sought time to serve it till 03.11.2017. On
03.11.2017, the plaintiff had filed Notice of Motion Nos.3145/2013 and
3146/2013 and he submitted that both these Notice of Motions be
tagged with the suit.
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4. It appears that the roznama dated 03.11.2017 was
incorrectly recorded to adjourn the suit for draft issues to 08.01.2018.
In fact, there was no record to show that the defendant No.1 was served
with Writ of Summons. None of the defendants had filed their written
statement on record. Still the suit was fixed for filing draft issues and
that roznama was carried forward till 20.09.2019. On 20.09.2019, the
Court recorded the fact that the Notice of Motion Nos.3145/2013 and
3146/2013 have been tagged with the suit, meaning thereby the
plaintiff does not want to proceed with those Notice of Motions. Hence,
they were disposed off. It was also recorded that the defendants have
failed to file written statement within stipulated period and therefore,
no written statement order was passed against the defendants and the
suit was adjourned to 14.11.2019 for evidence of the plaintiff without
written statement. By precipe, the defendant No.1 took the matter on
board on 18.10.2019 and filed this Notice of Motion No.3904/2019.
5. This propels me to the relief asked by the defendant No.1
in this Notice of Motion. The defendant No.1 claims for dismissal of the
suit as the writ of summons is not served by the plaintiff within
stipulated period and for this purpose the defendant No.1 relies upon
section 27 of the C.P.C. which lays down that
“where the suit has duly
instituted, a summons may be issued to the defendant to appear and
answer the claim and may be served in the manner prescribed on such
day not beyond 30 days from the date of the institution of the suit”.
The defendant No.1 further relies upon Rule 55 of the Bombay City
Civil Rules which mandate that the plaintiff shall deliver the writ of
summons to the sheriff for service within the local limit of the
jurisdiction of the Court within 36 days from the filing of the plaint.
According to the defendant No.1, the plaintiff has not complied with
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these provisions and therefore, the suit is liable to be dismissed.
However, the roznama clearly shows that the advocate for the
defendant No.1 Mr. Chaudhari had appeared on 12.07.2014 when the
plaintiff filed Notice of Motion for ad-interim injunction and the
defendant No.1 was served with the Notice under section 80(2) of the
C.P.C. The advocate for the defendant No.1 has been regularly
appearing in the suit since that date and has taken part in the hearing of
the Notice of Motions filed from time to time. So, it is necessary to see
what is the effect of appearance of an advocate who is the Assistant
Government Pleader appeared on behalf of the defendant No.1/State.
6. Order XXVII of C.P.C. deals with the suits by or against the
Government or Public Officers in their official capacity. Rule-4 provides
that “the Government Pleader in any Court shall be the agent of the
Government for the purpose of receiving processes against the
Government issued by such Court.” Rule-8-B defines the term
“Government” and “Government Pleader” and the relevant clause is
clause (c) which reads that “in relation to any suit by or against a State
Government or against a public officer in the service of a State, the
State Government and the Government pleader or such other pleader as
the State Government may appoint, whether generally or specially, for
the purpose of this order”.
7. The defendant No.1/State has not objected the appearance
of advocate Mr. Chaudhari on its behalf. Rule-63 of the Bombay City
Civil Rules inter-alia provides that “
Unless the Court shall otherwise
order, the service of a summons to appear and answer shall be proved
by the appearance or Vakalatnama having been filed...” Rule 56 of the
Bombay City Civil Rules provides that “A writ of summons need not be
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served on the defendant personally, if he has appeared and if his
advocate undertakes in writing to accept service”. Rule-50 further
provides that “
Any defendant or his advocate applying to the plaintiff or
his advocate, for a copy of the plaint and Exhibit annexed thereof shall
be furnished with the same...” The copies of the plaint and the Exhibits
annexed thereof for both the defendants are lying in the brief.
8. So, it would be crystal clear that since the defendant No.1/
State has appeared through his advocate, it was not necessary to serve
the defendant No.1 with writ of summons as per the provisions of Order
V of C.P.C. or the Rules framed under the Bombay City Civil Rules. All
that was required for the defendant No.1 to receive the copies of the
plaint and the exhibits annexed thereto, if filed on record or if not filed,
ask for the same to the plaintiff. In the present case, the copy of the
plaint and exhibits are already filed on record. Therefore, the
procedure adopted by the defendant No.1 to represent the State in all
the interlocutory proceeding in the suit, but not to file written statement
within stipulated period by waiting for service of writ of summons is not
consistent with the above referred procedure. Thus, I find that there is
absolutely no ground available to the defendant No.1 to ask for
dismissal of the suit for want of service of writ of summons only when
no written statement order passed against it.
9. In the alternative, the defendant No.1 prays for
condonation of delay to file its written statement on record. While
considering this prayer, the record would show that the defendants
were kept engaged by the plaintiff by filing successive Notice of Motions
and Chamber Summons. The plaintiff amended the plaint and served its
copy on the defendants. Even after service of amended plaint on the
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defendants, when they failed to file their written statement, no written
statement order has been passed. Secondly, the suit is basically against
the State Government filed by waiving the Notice under section 80 of
C.P.C. Order XXVII Rule 5-A of the C.P.C. lays down that “
where the suit
is instituted against the public officer for damages or other reliefs in
respect of any act alleged to have been done by him in his official
capacity, the Government shall be joined as party to the suit”. The
plaintiff has not joined the Government of Maharashtra as party
defendant and has directly joined the Deputy District Collector as the
defendant No.1. Thus, it is necessary for the plaintiff to add the
Government of Maharashtra as the defendant No.1 through the Deputy
District Collector. Such correction is required to be made in array of the
parties.
10. Thus, it appears from the record that both the plaintiff and
the defendants were so casual as regards prosecution of the suit and
they were more interested in filing Notice of Motions and Chamber
Summons based on such suit. Under such circumstances, it will be not
just to cast entire blame on the defendant No.1 for not filing the written
statement within the stipulated period. Under such circumstances, it
would be in the interest of justice to allow the plaintiff to make
correction in array of the parties as observed hearinabove and on
submissions of the amended copy of the plaint on record, the defendant
No.1 should be allowed to file its Written Statement thereafter.
Considering the current situation of outbreak of COVID-19 and
uncertainly of resumption of Court working in normal course, there
should not be stipulation of the time for carrying out the correction or
filing of the written statement. The Court shall pass appropriate order
as per the improved situation in due course for carrying out the
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correction by the plaintiff and for filing written statement by the
defendant No.1. In view of this, the Notice of Motion is required to be
made absolute in terms of prayer clause (b) and (c) subject to the
correction of array of the parties by the plaintiff. In the result, the
following order.
ORDER
1. Notice of Motion No.3904 of 2019 is partly made absolute in
terms of prayer clause (b) and (c).
2. The delay to file written statement is condoned and the defendant
No.1 is allowed to file its written statement on filing of the amended
copy of the plaint by carrying out the correction as mentioned in this
order by the plaintiff.
3. The defendant No.1/State shall receive the amended copy of the
plaint and the Exhibits annexed thereto filed on record under receipt.
4. In the circumstance, no order as to cost.
5 Notice of Motion No.3904 of 2019 stands disposed of.
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: 18/06/2020. Gr. Bombay.
Dictated on : 18/06/2020
Transcribed on : 18/06/2020
Signed on : 18/06/2020.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25/06/2020 At 01.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
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Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
18/06/2020
Judgment/Order signed by P.O. on 18/06/2020
Judgment/Order uploaded on 25/06/2020
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