Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.4272-19 in SU 406-2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.4272 OF 2019
(CNR No.MHCC01-011679-2019)
IN
SUIT NO.406 Of 2019.
(CNR No.MHCC01-001590-2019)
Dr. Dilip Jayantilal Mehta }...PLAINTIFF.
VERSUS
Lataben Jayantilal Mehta & Ors. }...DEFENDANTS.
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Shri Arvind Giriraj advocate for the plaintiff.
Shri.Akshay Shah advocate for defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 17/03/2021)
1. This Notice of Motion is taken out by the defendants for
seeking the following reliefs.
(a) That this Hon’ble Court be pleased to condone the delay of
192 days, caused in filing the Written Statement;
(b) That the Hon’ble Court be pleased to take on record the
Written Statement in the aforesaid matter;
2. Read the affidavit filed in support of Notice of Motion and
reply filed by the plaintiff. Heard learned Shri.Akshay Shah advocate for
the defendants & learned Shri.Arvind Giriraj advocate for the plaintiff.
Perused the entire record.
3. Learned advocate for the defendants argued that writ of
summons is served on the defendants on 05/04/2019 but defendants
had challenged the order of
status quo passed by this Court before
Hon'ble High Court & there was summer vacation thereafter, defendant
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2 NM No.4272-19 in SU 406-2019
No.2 was staying in U.S.A. with her parents for two years for taking
care of parents, there were settlement talks with the plaintiff, father of
defendant No.2 was hospitalized as he had suffered mild paralytic
attack in July because of which, defendant No.2 was taking care of her
father for 2-3 months and because of those reasons, defendant No.2
could not give instructions to the advocate for preparing written
statement. He argued that delay caused in filing written statement is
not deliberate and hence defendants may be permitted to file their
written statement by condoning the delay.
4. As against this, learned advocate for the plaintiff
vehemently opposed the Notice of Motion by submitting that
defendants have not calculated the period of delay properly as delay is
of around 270 days and not of 192 days. He argued that contentions
raised in the affidavit filed in support of Notice of Motion are not
supported by any documentary material, defendant No.2 has made false
statement that she is taking care of the mother, there is no sufficient
cause to condone the delay hence, Notice of Motion is liable to be
dismissed. He alternatively submitted that if the Court is inclined to
accept the prayers made in this Notice of Motion, exemplary costs shall
be imposed on the defendants.
5. At the outset, it may be stated here that there is substance
in the argument of learned advocate for the plaintiff that defendant
No.2 has not produced any documentary material in support of the
statements made in the affidavit filed in support of the Notice of Motion
about the health problems of her father and mother however, it does
not appear from the reply filed by the plaintiff that plaintiff has
anywhere disputed the contention of the defendants that father and
mother of plaintiff and defendant No.2 are presently aged about 92
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3 NM No.4272-19 in SU 406-2019
years and 89 years respectively. In plaint para 14, plaintiff himself has
contended that defendant No.1 had a severe fall at home in June 2016.
Even though, said fall was before 3 years of taking out of this Notice of
Motion, the fact remains that defendant No.1 is presently aged 89 years
due to which, much weightage cannot be given for non production of
documentary material by the defendant No.2 in support the contentions
raised by her in her affidavit about health problems of the parents.
6. There is substance in the argument of learned advocate for
the plaintiff that filing of Appeal by the defendants before Hon'ble High
Court in itself is not a sufficient ground for not filing the written
statement within statutory period prescribed in Order-8 Rule-1 of C.P.C..
Defendants have counted the delay to be of 192 days & though there
appears substance in the argument of learned advocate for the plaintiff
that delay is of more than 192 days, it does not appear that the delay is
intentional. Considering those aspects and the alternative argument of
learned advocate for plaintiff, this Court is of the opinion that for giving
fair opportunity to the defendants to contest the suit on merits by filing
their written statement, it would be in the interest of justice to allow
this Notice of Motion in terms of its prayer clauses (a) and (b) by
imposing certain costs. Thus, an order.
O R D E R
Notice of Motion No.4272 of 2019 is allowed in terms of prayer
clauses (a) and (b) subject to payment of cost of Rs.5,000/- (Five
Thousand rupees) by the defendants to the plaintiff.
Defendants shall pay/deposit the amount of cost mentioned
above within four weeks from today.
Date : 17/03/2021. (P.P.RAJVAIDYA)
Dictated on : 17 /03/2021. Judge, C.R.No.9,
Checked on : 18/03/2021. City Civil Court,
Signed on : 18/03/2021. Mumbai.
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4 NM No.4272-19 in SU 406-2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
19.03.2021at 12.45 p.m. Mrs.Urmila Dhoble
UPLOAD DATE AND TIME NAME OF TYPIST
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 17/03/2021.
Order signed by P.O. on 18/03/2021.
Order uploaded on 19/03/2021.
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