Final Order 2

Order Details: Notice of Motion
Pdf Text: N/M 4160/2019 1 IN SU 2177/18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION 4160 OF 2019
(CNR NO.MHCC01-011700-2019)
IN
S.C. SUIT NO.2177 OF 2018
(CNR NO.MHCC01-010316-2018)
Sohan Singh Dhami ]... Plaintiff
Versus
Assistant Engineer (Water Works) and Anr. ]...Defendants
Ld. Adv. Indira Labdhe h/f. Adv. P. D. Gandhy for the Plaintiff
Ld. Adv. Smita Chavan for defendant No.1/MCGM.
Ld. Adv. Mansi Vora for defendant No.2
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no. 8)
DATED : 17th September, 2021
O R A L O R D E R
1. Defendant No.2 is taken out this Notice of Motion for
condoning delay of 71 days. It is alleged by the defendant No.2 that
because of the personal difficulty and on account of ill health of
advocate of defendant No.2 he could not file written statement within
permissible time framed, and there is delay of 71 days in filling written
statement on record. If the suit is heard without written statement grave
prejudice will be caused to the defendant No.2. Hence defendant No.2
prayed that delay of 71 days be condoned and he be permitted to file
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written statement on record.
2. Plaintiff resisted the Notice of Motion by filling affidavit in
reply dated 22.01.2019. It is alleged by the plaintiff that Notice of
Motion is filed without cogent acceptable reason, hence deserve to be
dismissed. If the defendant No.2 is permitted to file written statement
on record grave prejudice, loss and harm will be caused to the plaintiff.
The reasons mentioned in the application is not supported by any
documentary proof. Hence plaintiff prayed for rejection of Notice of
Motion .
3. Perused Notice of Motion, say filed by the plaintiff. Heard
both sides at length.
4. The advocate for the defendant No.2 submitted that he was
served with Writ of Summons on 23.08.2018. He has to file written
Statement within 90 days but there is delay of 71 days in filling written
statement. The advocate for the defendant No.2 relied upon the
decision in a case of N. Balkrishnan Vs. M. Krishnamurthy,
MANU/SC/0573/1998, therein Hon’ble Supreme Court of India held
that in every case of delay there can be some lapse on the part of
litigant concerned. That alone is not enough to turn down his plea and
to shut the door against him. If the explanation does not smack of mala
fides or is is not put forth as part of a dilatory strategy the court must
show utmost consideration to the suitor.
5. On the same point advocate for the defendant No.2 also
relied upon decision in a case of Improvement Trust, Ludhiana Vs.
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Ujagar Singh and Ors. in Civil Appeal No.2395/08. Therefore advocate
for the defendant No.2 submitted that if delay is not condoned and suit
heard without written statement. He will be loose his right to contest
the suit and it is noting but to shut the door against him.
6. The advocate for the plaintiff submitted that the ground
mentioned in the application are not sufficient to condoned the delay.
No documentary proof filed in support of Notice of Motion, hence
prayed for rejection of application. Considering the observation of
Hon’ble Supreme Court in above cited case that there is no straight
jacket formula for condonation of delay. It is also immaterial about the
length of delay but it is necessary for defendant No.2 to bring on record
sufficient reasons of not filing written statement within prescribed
period of limitation.
7. In this case defendant No.2 stated that due to personal
difficulty and ill health of his advocate, he could not file written
statement within time. In my opinion this ground is sufficient to
condoned delay. I have also considered that delay is of 71 days only, if
the delay is not condoned and suit is proceed without written statement
against defendant No.2. He will loose right to context the suit or put
forth his defence. Therefore in my opinion defendant No.2 entitled for
condonation of delay, due to delay in filing written statement. Plaintiff
also suffer loss but it can be compensate in terms of money. Considering
this facts I pass the following order :
O R D E R
1. Prayer clause (a) in Notice of Motion No.4160/19 is allowed,
subject to cost of Rs.2,000/-.
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2. Defendant No.2 is directed to deposit cost of Rs.2,000/- in
District Legal Services Authority (D.L.S.A.) section on or before
next date.
3. After depositing cost, written statement be taken on record.
4. Notice of Motion No.4160/2019 is disposed of accordingly.
(S.D.Kulkarni)
Judge,
City Civil Court,
Date : 17.09.2021 Gr. Mumbai.
Dictated on : 17.09.2021
Transcribed on : 17.09.2021
Signed by HHJ on : 17.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 4.30 p.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
17.09.2021
JUDGMENT/ORDER signed by
P.O. on
17.09.2021
JUDGMENT/ORDER uploaded
on
21.09.2021
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