Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010107402019. 1 Notice of Motion No. 3898/2019
in L.C. Suit No. 4360/2013.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3898 OF 2019.
IN
L.C. SUIT NO. 4360 OF 2013.
Arun Narayan Patil and the Others. .…..…………... … PLAINTIFFS.
V/s.
M/s. Gurudatt Construction Co. and the Others. … … DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 4th October, 2024.
APPEARANCES :
Mr. Vishnu Mishra, Ld. Advocate for the Plaintiffs.
Mr. Amol Suryawanshi, Ld. Advocate for Defendant No. 3.
Mrs. S.R. Charatkar, Ld. Advocate for Defendant Nos. 4 and 5/MCGM.
*****
01. Defendant No.3 has taken out the Notice of Motion (for the
short the NM), for setting aside the Order dtd. 06.11.2017, proceeding
the suit without written statement, for condonation of delay of about 05
years, 09 months and 27 days in filing his written statement and for the
permission to place the same on record. Perused the NM, the supporting
affidavit of Mr. Subhashchandra Mahadeo Sawant, for defendant No. 3
and the plaintiffs' reply. Heard.
02. Considering the record, the points for determination, along
- with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether delay in filing of the written
statement by defendant No.3 needs to
be condoned and the Order passed on
06.11.2017 is to be set aside?…....……. .....Yes.
(2). What Order ? .............…....................... …. As per final Order.
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CNR NO : MHCC010107402019. 2 Notice of Motion No. 3898/2019
in L.C. Suit No. 4360/2013.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO. 1 :
03. By this NM, defendant No.3 contended that on 20.12.2013,
he was served with the writ of summons. Accordingly, he appeared with
his advocate and the matter was adjourned for filing his reply. Although,
his advocate drafted written statement and affirmed it on 20.04.2016,
as the same was not filed on record, by the Order dtd. 06.11.2017, this
suit proceeded ex-parte against him. On inquiry, his advocate informed
him that owing to other maters before the High Court matters, he could
not appear in the suit. Hence, defendant No.3 appointed new advocate
and on verification of the brief, he found the original written statement,
affirmed on 20.04.2016, which was somehow not filed on record. Thus,
there has been delay in filing written statement, which is not intentional
and needs to be condoned. Otherwise, he would suffer irreparable loss.
The plaintiffs denied this NM as defendant No. 3 could not satisfactorily
explained the delay in filing his written statement. Moreover, he did not
annex the said written statement affirmed on 20.04.2016, with this NM.
Further, it would be unjust to entirely blame his earlier advocate.
04. Considering the rival submissions, at the outset, it is worth
notable that by this suit the plaintiff prayed for relief of declaration that
they, along-with other co-owners, continued to be owners of 1000 sq. ft.
yards of the land, bearing Survey No. 31, Hissa No. 8, CTS No. 740 at
Village Bhandup, Mumbai. They also prayed for the declaration that the
defendants had no right, title and interest in the said land, along-with
other ancillary reliefs. The record shows that after service of the writ of
summons to defendant No. 3, he appeared in the matter by his advocate
on 19.09.2014, and the matter was adjourned for his reply and written
statement. Although, thereafter, he was continuously absent and hence,
the Order dtd. 06.11.2017 was passed. However, the fact remained that
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CNR NO : MHCC010107402019. 3 Notice of Motion No. 3898/2019
in L.C. Suit No. 4360/2013.
even after passing of this Order, there could be no substantial progress
in the matter, as for considerable period of time, it was posted for filing
of the draft issues. In the meantime, plaintiff No. 1 died and therefore,
his L.Rs. were brought on record. The suit is still at initial stage and trial
is to begin. This way, it is crystal clear that there are apparent latches on
the part of defendant No.3 to promptly proceed with the suit, which is
more than 10 years old. However, it is equally true that there could be
no substantial progress in the matter and no rights could be accrued in
the plaintiffs’ favour, as defendant No.3 failed to place his defence. That
apart, reliefs claimed on trial are having the far reaching repercussions
and hence, I am of the opinion that contest from defendant No.3 would
facilitate to adjudicate upon the suit issues effectively and finally. More
so, it is always better to have the trial on merits. Certainly, while doing
so, it would be just to impose costs upon defendant No. 3 having further
delayed this old trial. Hence, I answered point No. 1 in the affirmative
and in answer to point No. 2, I pass the following Order:
-: O R D E R :-
(i). Notice of Motion No. 3898/2019 is made absolute in terms
of prayer Clause (a) and (b) only, subject to payment of
costs of Rs. 5,000/-(Rs. Five Thousand) in favour of the
DLSA, Mumbai, positively till the next date.
(ii). On payment of the costs, defendant No.3 is directed to
to file his written statement on record, without further
delay.
(iii). The parties to expedite the matter.
(iv). Notice of Motion No. 3898/2019 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 04.10.2024. City Civil Court, Mumbai.
Dictated on : 04.10.2024.
Transcribed on : 17.10.2024.
Checked and Signed on : 18.10.2024.
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CNR NO : MHCC010107402019. 4 Notice of Motion No. 3898/2019
in L.C. Suit No. 4360/2013.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
18.10.2024 at 1.26 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 04.10.2024.
Judgment/Order signed by P.O. on 18.10.2024.
Judgment/Order uploaded on 18.10.2024.
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