Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO.4302/2019
MHCC010117912019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4302 OF 2019
IN
S.C.SUIT NO.1881 OF 2016
Trilochan Udaynath Samantara
and another. …Applicant/Defendant
no.1 and 2.
In the matter between
Avgadshing Bhairusingh Parmar. … Plaintiff.
Versus
Trilochan Udaynath Samantara
and others ...Defendants
Advocates
Ajay Thavare for the plaintiff.
Deepa Kamat for defendant nos.1 and 2.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
COURT NO.2
DATED : 5th April, 2022.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of defendant no.1 and 2 for condonation of 506 days delay in
filing written statement and taking written statement of defendant no.1
and 2 on record.
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ORDER ..2.. NM NO.4302/2019
2. Perused the notice of motion, reply of the plaintiff, rejoinder of
defendant no.1 and 2 and proceeding of the case.
3. Contention of advocate for defendant no.1 and 2 is that the
plaintiff has filed Suit No. 2324 of 2013, 1757 of 2013 and the present
suit before this Court. Plaintiff has also filed multiple proceedings which
are pending in the Small Causes Court, Magistrate Court, City Civil
Court and even in High Court. On 11.04.2018, the plaintiff not served
entire proceeding of present suit in Court No.4. Defendant no.1 was
under impression that said proceeding where in Suit No.1757/2013.
Hence, he did not inform his advocate and his advocate was under
impression that written statement has been already filed in S.C. Suit
No.1757/2013. Due to multiple proceeding of plaintiff, defendant no.1
and 2 were confused whether they have filed written statement in the
present suit or not. Hence, there is bonafide delay of 506 days in filing
written statement. Accordingly advocate for defendant no.1 and 2
prayed for allowing the notice of motion.
4. Contention of advocate for the plaintiff is that defendant no.1
and 2 served with writ of summons on 17.01.2018. Prior to that also
defendant no.1 and 2 were served with copy of plaint, writ of summons
and documents. Thus even after deducting 30 days period of filing
written statement, delay is of 580 days. There is no sufficient cause for
condoning the delay. Delay is not properly explained. Hence, he prayed
for dismissal of notice of motion.
5. From perusal of record more particularly affidavit of service of
writ of summons filed by the plaintiff dated 04.02.2019, it appears that
defendant no.1 and 2 served with copy of plaint, all documents and
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ORDER ..3.. NM NO.4302/2019
notice of motion on 11.04.2018. Thus it appears that writ of summons
served on defendant no.1 and 2 on 11.04.2018 and not on 17.01.2018.
Further from roznama dated 20.12.2018, it appears that service to
defendant no.2 and 3 is not effected. Hence last chance was granted to
the plaintiff for affidavit of service on defendant no.2 and 3. Plaintiff
admitted in his reply that he has filed Suit No. 2324/2013, 1757/2013
and present suit before this Court. He also admitted that the plaintiff
has filed proceeding in Small Causes Court, Magistrate Court, City Civil
Court and even in the High Court.
6. Present suit was pending before the Court no.4. It is not
disputed that the plaintiff served proceeding of present suit in Court
no.4. Hence it can be taken into consideration that plaintiff might have
confused due to multiple proceeding of the plaintiff as he has filed
written statement in Suit No.1757 of 2013 and hence he did not inform
to his advocate. However, it can be said that defendant no.1 and 2 are
not vigilant in defending the suit and therefore this delay is caused for
taking out present notice of motion. It is principle of natural justice that
no party should remain unheard and opportunity should be given to
both parties to put fourth their case before the Court.
7. Plaintiff has filed present suit for declaration of Sale Deed dated
15.06.2015 to be null and void, permanent injunction and possession of
the suit premises. Considering the nature of suit and in view of above
facts and circumstances, notice of motion is liable to be allowed. So far
as delay in filing written statement of defendant no.1 and 2 is
concerned, plaintiff can be compensated in terms of money. In the
result, following order.
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ORDER ..4.. NM NO.4302/2019
ORDER
1. Notice of Motion No.4302 of 2019 is allowed subject to costs of
Rs.5,000/- to be paid by defendant no.1 and 2 to the plaintiff before
next date.
2. After payment of costs as above, written statement of defendant
no.1 and 2 be taken on record and mark as exhibit.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 05.04.2022
Typed on : 05.04.2022
HHJ signed on : 05.04.2022
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ORDER ..5.. NM NO.4302/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 05.04.2022, 5.30 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
05.04.2022
JUDGMENT/ORDER signed by P.O.
on
05.04.2022
JUDGMENT/ORDER uploaded on 05.04.2022
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