Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO. 4060/2019
MHCC010111602019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4060 OF 2019
IN
S.C. SUIT NO. 603 OF 2018
Mehtab Singh Rajoria …Plaintiff
Versus
Kalyan Singh Durilal Rajoria and 1. … Defendants.
Appearance
Adv. Bolwala for the plaintiff.
Adv. Pankaj Dwivedi for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 12th August, 2021.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of defendants for condonation of 589 days delay in filing written
statement.
2. Perused the notice of motion supported with affidavit, reply and
rejoinder of the plaintiff and record.
3. Contention of defendants is that as per the Bombay City Civil
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ORDER ..2.. NM NO. 4060/2019
Rules, plaintiff has to serve writ of summons on the defendants.
Defendants are served with the copy of plaint and notice of motion of
the plaintiff but writ of summons was not served on defendants till date.
Defendants were under the impression that since application for ad-
interim relief was made by the plaintiff, defendants would be required
to file affidavit in reply to notice of motion and plaintiff would be
required to serve writ of summons on defendants and thereafter
defendants would be required to file written statement. Advocate for
defendants advised them to file their written statement on the record.
Defendants signed their written statement on 09.10.2019. Under the
above circumstances, delay in filing written statement is caused. Hence
defendants prayed for allowing the notice of motion.
4. Contention of advocate for the plaintiff is that defendants failed
to file written statement within prescribed period. Defendants appeared
before the Court in notice of motion filed by the plaintiff. They are
served with the copy of plaint also. Hence writ of summons is not
required to be served on defendants. In support of contentions, he
relied on the Judgment of the Hon'ble High Court at Bombay in Appeal
from Order No. 807/2011 (
Mr. Suresh s/o Daduram Abnave V/s.
Municipal Corporation of Gr. Bombay and Ors.). In above
circumstances, he prayed for dismissal of notice of motion.
5. Admittedly defendants received the copy of plaint alongwith
draft notice of motion filed on behalf of the plaintiff. Defendants
appeared before the Court on 05.03.2018 and filed their reply to draft
notice of motion. The Hon'ble Bombay High Court in Appeal from Order
No. 807/2011 (
Mr. Suresh s/o Daduram Abnave V/s. Municipal
Corporation of Gr. Bombay and Ors.) held that
filing of vakalatnama
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ORDER ..3.. NM NO. 4060/2019
and/or appearance of the parties through advocate, amounts to service
of summons for all purposes. There is no question of issuing fresh
notice and/or multiple notices and/or service of summons at every
stage of the pending legal proceedings. In view of above facts and
judgment of the Hon'ble Bombay High Court, defendants need not be
served again with writ of summons. Judgment relied on by advocate
for the plaintiff is not on the point of condonation of delay in filing
written statement.
6. Suit is of the year 2018. Defendant no.1 is elder brother of
plaintiff. Defendant no.2 is wife of defendant no.1. Suit is filed for
permanent injunction restraining defendants from dispossessing the
plaintiff from the suit premises. During pendancy of the suit, defendants
dispossessed the plaintiff from the suit premises. Accordingly plaintiff
filed chamber summons no. 697/2018 for amendment and it is disposed
of on 02.11.2018.
7. According to defendants that they are under the impression that
plaintiff was required to serve writ of summons as per the Bombay City
Civil Court Rules and hence they waited for service of writ of summons.
Their advocates advised them to file written statement. Accordingly
they affirmed the written statement on 09.10.2019. These submission of
defendants can not be ignored.
8. Admittedly defendants are filing their written statement
belatedly. It is settled principle of natural justice that no party should be
remained unheard and matter should be decided on merits. For causing
delay on behalf of defendants in filing their written statement, plaintiff
can be compensated in terms of money but right of fair hearing cannot
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ORDER ..4.. NM NO. 4060/2019
be denied to defendants. Under the facts and circumstances, notice of
motion is liable to be allowed subject to heavy costs. In the result,
following order.
ORDER
(1) Notice of motion no. 4060/2019 is allowed subject to costs of
Rs.10,000/- to be paid to the plaintiff before next date.
(2) After payment of costs, written statement of defendants be taken
on record and mark as exhibit.
(3) Notice of motion no.4060/2019 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date: 12.08.2021
Typed on : 12.08.2021
HHJ signed on : 12.08.2021
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ORDER ..5.. NM NO. 4060/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 12.08.2021, 2.30 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
12.08.2021
JUDGMENT/ORDER signed by P.O.
on
12.08.2021
JUDGMENT/ORDER uploaded on 12.08.2021
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