Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 4209-19 in Suit no.90-18
1 Date :07.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4209 OF 2019
IN
SUIT NO. 90 OF 2018
(CNR NO.MHCC010115372019 )
Lilaben Manibhai Patel .. Applicants
In the matter between
Shardaben Purshottam Patel & Anr. .. Plaintiffs
Versus
Ashok Manibhai Patel & Anr. .. Defendants
Appearances :
Adv.M.A.Vaid i/b Vaid and Assoc. plaintiff.
Adv.Bharat Jain i/b IC Legal for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 07.01.2020
ORDER
1. The defendant no. 2 has filed instant Notice of Motion for
condonation of 82 days delay in filing Written Statement.
2. It is the contention of the defendant no. 2 that she has been
added as defendant no. 2 vide, order dated 07.12.2018 passed in
Chamber Summons No. 1569 of 2018. Thereafter, on 10.06.2019,
this Court directed to the plaintiff to serve the amended plaint
upon the defendant no. 2. It is contended by the defendant no. 2
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that she has neither served with the Writ of Summons nor with the
amended plaint of the present suit by th plaintiff. It is further
contended by the defendant no. 2 that it is utter surprise of
defendant no. 2 that on 16.10.2019, the plaintiff filed pursis in
respect of proof of service of the amended plaint alongwith the
service letter. It is submitted by the defendant no. 2 that she has
not received the amended plaint nor the acknowledgement bear
anyone’s signature. Therefore, she has claimed that till date she
has not been served with the copy of plaint. However, after
passing of the order dated 16.10.2019, she has obtained the copy
of plaint from her son i.e. defendant no. 1 to file her Written
Statement. As per the contention of the plaintiff service was
affected upon her on 19.07.2019. Therefore, there is a delay of 82
days in filing Written Statement. The aforesaid statement is made
by the defendant no. 2 without admitting the service of plaint.
3. It is further contended by the defendant no. 2 that if the
delay is not condoned, great hardship and prejudice would be
caused to her and if she would be denied to file Written Statement,
her right to defend the claim of the plaintiff. Hence, she prayed
for allowing the present Notice of Motion by condoning delay and
to take the Written Statement on record.
4. Per contra Notice of Motion is opposed by the plaintiff by
filing say. It is vehemently contended by the plaintiff that the
defendant no. 2 although served is not admitting any delay on her
part to file the Written Statement. The defendant no. 2 failed to
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give any reason whatsoever for the delay caused in filing Written
Statement. The delay is 111 days in filing Written Statement but
the defendant no. 2 erroneously calculated delay as 82 days. It is
further contended that the defendant no. 2 was duly served on
19.10.2019. There is a postal acknowledgement to that effect.
Therefore, the plaintiff prayed for dismissal of the Notice of
Motion.
5. Heard both the sides. Perused Notice of Motion and reply. It
is not in dispute that this Court on 16.10.2019, after perusal of
letter dated 15.07.2019 issued by an advocate of the plaintiff
observed that the plaintiff served the plaint to defendant no.2.
Therefore, this Court have passed specific order to that effect.
Admittedly, the aforesaid order is not challenged by the defendant
no. 2. The defendant no. 2 in the instant Notice of Motion again
took the same plea that she has not been served with the plaint.
6. I have perused the service letter dated 15.07.2019 which
clearly speaks that the plaintiff served plaint alongwith all exhibits
to the defendant no. 2 at the correct address. Further, the receipt
shows that the envelope containing 480 grams. The
acknowledgement bears the seal of post office. Therefore, by
invoking presumption envisage under Section 27 of General Clause
Act, in my view, it is the best service. However, though there is no
signature of the defendant no. 2 on the postal acknowledgement.
The defendant no. 2 inspite of the aforesaid proof of specific order
passed on 16.10.2019 again taking the similar plea which
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according to me is not at all sufficient reasons to condone the
delay.
7. However, looking to the fact that the defendant no. 2 is 85
years old lady and if the delay is not condoned, her right to defend
the suit would be denied. Hence, considering the aforesaid fact,
in my view, the delay can be condoned subject to payment of cost
of Rs. 2,000/ to the plaintiffs. Thus, I proceed to pass the
following order :
ORDER
1. Notice of Motion No. 4209 of 2019 is hereby allowed in
terms of prayer clause (a).
2. Delay in filing Written Statement is hereby condoned subject
to the payment of cost of Rs. 2,000/ by the defendant no. 2
to the plaintiff.
3. Notice of Motion No. 4209 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 07.01.2020 Greater Bombay.
Dictated on : 07.01.2020
Typed on : 07.01.2020
Draft Submitted on : 07.01.2020
Checked on : 09.01.2020
Signed on : 09.01.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10/01/2020 at 11.30 a.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
07/01/2020
JUDGMENT/ORDER signed by P.O.
on
09/01/2020
JUDGMENT/ORDER uploaded on 10/01/2020
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