Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM NO. 3930/2019
MHCC010108282019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3930 OF 2019
IN
S.C. SUIT NO.2665 OF 2014
Ganesh Rajaram Tarphe & One. ….Plaintiffs.
Versus.
Damji Ramji Shah & others. ...Defendants.
Advocates
Rahul Mahadik for plaintiffs.
Vaishali Kabare for defendant no.4.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 3rd March, 2021.
ORAL ORDER
Heard both parties on notice of motion moved on behalf of
defendant no.4 for condonation of delay in filing written statement and
taking his written statement on the record. Perused the notice of motion
alongwith affidavit. Plaintiff did not file reply to notice of motion but
argued orally.
2. Contention of advocate for defendant no.4 is that writ of
summons was not served on defendant no.4. However he filed reply to
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plaintiff's notice of motion in January 2015. He taken objection to the
maintainability of the suit on the ground of jurisdiction and preliminary
issue was framed under section 9A of the C.P.C. Suit was adjourned
from time to time for hearing on preliminary issues. He filed affidavit of
examination-in-chief alongwith list of documents on 09.06.2016 in
support of his objection. He was under the impression that since his
detail reply to plaintiffs notice of motion was filed, his reply can be
treated as written statement and he need not file separate written
statement.
3. In the meanwhile plaintiff carried out amendment in the plaint
and defendant no.4 filed additional written statement to the amended
plaint in November 2018. In the beginning of additional written
statement, defendant no.4 mentioned that his affidavit in reply dated
12.01.2015 be treated as written statement. Then the case was fixed for
framing of issues. Accordingly advocate for defendant no.4 filed draft
issues. At that time, this Court observed that written statement of
defendant no.4 is not on record and submissions were made on behalf
of defendant no.4 that his affidavit in reply which is already on record
can be treated as his written statement. At that time, defendant no.4
learnt that his affidavit in reply cannot be treated as written statement
and needs to be filed separately. Defendant no.4 have good case on
merit and every hope of success in the suit if his written statement is
taken on record. Hence prayed for condonation of delay in filing written
statement and for making absolute notice of motion.
4. Advocate for plaintiffs opposed notice of motion on the ground
of inordinate delay in filing notice of motion for taking written
statement of defendant no.4 on record.
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5. From the perusal of record and proceedings of the case, it
appears that defendant no.4 is strongly contesting the suit. He had filed
reply to plaintiffs notice of motion no. 3613/2014. He had also filed
reply to plaintiffs chamber summons no.835/2015 which is decided on
16.08.2019.
6. Defendant no.4 also filed his additional written statement on the
record on 14.11.2018 and it is marked as Exhibit 8. He also filed draft
issues on 14.06.2019. This shows that he was under the impression that
his affidavit in reply to plaintiffs notice of motion has been treated as
his written statement. Further defendant no.4 also filed his written
statement alongwith present notice of motion which appears to be
affirmed on 03.10.2019. It is well settled that no party should remain
unheard and case to be decided on merits. Under the facts and
circumstances, defendant no.4 made out a good case for making
absolute notice of motion in terms of prayer clause (a). In the result
following order.
ORDER
1. Notice of motion no.3930 of 2019 is allowed and made absolute
in terms of prayer clause (a).
2. Written statement of defendant no.4 be taken on record and
marked as Exh.10.
3. No order as to costs.
4. Notice of motion no. 3930 of 2019 is disposed of.
(Sunil T. Soor)
Judge
Date : 03.03.2021 Gr. Mumbai.
Typed on : 03.03.2021
HHJ signed on : 03.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 03.03.2021, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
03.03.2021
JUDGMENT/ORDER signed by P.O.
on
03.03.2021
JUDGMENT/ORDER uploaded on 03.03.2021
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