Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF :COURT 01 ADDL SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0104136/2019
M/s. Adinath Builders and Developers Vs 1.Jitendra Mahadeo Katam 2.Dhondu Deo
Nachankar 3.Krishna Sakharam Pashte 4.Laxman Hare Sakhte
Date : 28092021
Business : Adv. Fayaz Khan for plaintiff is present. None for
defendant. On 17.10.2019, the pursis is filed vide
Exh.4 stating that the defendant no.7(a) is expired.
The Ld. Adv.for the plaintiff has submitted that
they do not intend to bring LRs of defendant no. 7
(a) on record. Hence, considering this submissions
the suit stands abated against defendant no.7(a)
being dead. Order below N/M No. 4136/19 This
notice of motion is taken out by defendant no.7(b)
for setting aside order dtd. 19.06.2019 and for
grant of an opportunity to file written statement on
record. The notice of motion is supported by an
affidavit. The plaintiff has strongly opposed the
notice of motion by filing say on it. I have heard
Adv.for the plaintiff. I have perused the order
passed by Ld. Predecessor on 19.06.2019. As per
record defendant no.7(b) was served with the writ
of summons and he has appeared before the Court
on 31.10.2018. Defendant no.7(b) is came on
record after death of defendant no. 7. In affidavit in
support of notice of motion para no.2 shows that
Adv.for defendant no.7(a) was not well. It is also
submitted that meanwhile the defendant no.7(a)
has expired. In my opinion genuine reasons
mentioned in para no.2 to 5 for granting one
opportunity to defendant no.7(b) to contest the suit
on merits by filing written statement. Even
otherwise it is the trite law that for any mistake on
part of the advocate, the litigant should not suffer.
Therefore in my opinion subject to payment of cost
and specific directions that the written statement be
placed on record on next date would suffice the
purpose. As the suit is proceeded exparte against
other defendants, certainly no prejudice is caused
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to the plaintiff if this notice of motion is allowed.
Hence, I pass the following order ORDER Notice of
Motion No. 4136/19 is allowed and made absolute
interms of prayer clause (a) and (b) subject to
following two conditions i) The defendant no.7(b)
shall pay the cost of Rs.2000/ to the plaintiff. ii)
The defendant no.7(b) shall file written statement
on record on next date positively. Notice of Motion
is disposed of accordingly
Nature of Disposal : ALLOWED
Disposal Date : 28092021
COURT 01 ADDL SESSIONS JUDGE
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