Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4329/2019 ..1.. Suit No.9171/1992
CNR No. MHCC01-011924-2019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4329 OF 2019
IN
SUIT NO.9171 OF 1992
(High Court Suit No.3181 of 1992 )
Anil Bimla Singh and others. .. Plaintiff
Versus
Smt. Ramrati Kamla Singh and others. .. Defendant.
Advocates
R. S. Upadhyay for plaintiffs.
Sachin Pande for defendant no.2(b).
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 27th February, 2020
ORAL ORDER
Present notice of motion is taken out on behalf of defendant
no.2 (b) for condoning delay in filing written statement of legal heirs of
defendant no.2 and taking it on record in terms of prayer clause (a) and
(b).
2. Advocate for defendant no.2(b) submitted that originally suit
was filed before the Hon'ble High Court. At that time, defendant no.2
Mangala Singh was alive. He expired in the year 1999. Thereafter, suit
was amended and legal heirs of defendant no.2 i.e., defendant no.2(a)
to 2(f) were brought on record. Defendant no.2(b) is one of the legal
heirs of deceased defendant no.2. Advocate Abhay Pande was appearing
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NM No.4329/2019 ..2.. Suit No.9171/1992
before the Hon'ble High Court on behalf of defendant no.2(a) to 2(f).
On 21.10.2013, suit is transferred to this Court and advocate Abhay
Pande was appearing on behalf of defendant no.2(a) to 2 (f). Then
advocate Abhay Pande stopped appearing before this Court due to some
incident in his family. Then defendant no.2(b) appointed present
advocate for conducting case in this Court. Court appointed
Commissioner to record cross examination of defendant no.1. At that
time, defendant no.2(b) learnt that his written statement is not on
record. Defendant no.2(b) was not informed by advocate Abhay Pande
that his written statement or written statement of his deceased father is
not on record. Legal heirs of defendant no.2 were not aware about
filing of written statement due to lack of knowledge. Defendant no.2(b)
instructed his advocate for filing written statement and he took time to
prepare the same. Thus delay is caused in filing written statement of
legal heirs of defendant no.2. Hence prayed for making chamber
summons absolute in terms of prayer clause (a) and (b).
3. Defendant no.1(b) filed his reply to notice of motion but his
advocate remained absent at the time of hearing. His submissions is that
defendant no.2(a) to 2(f) were aware about not filing their written
statement on record. Defendant no.2(b) is prolonging the case. He
prayed for dismissal of notice of motion. Advocate for plaintiff filed say
to the notice of motion itself and submitted to pass necessary order.
4. It is not in dispute that originally suit was filed before the
Hon'ble High Court and in the year 2013, it was transferred to this
Court. Defendant no.2 expired in the year 1999. Legal heirs of
defendant no.2 i.e., defendant no.2(a) to 2(f) are brought on record in
the year 2005. Earlier, advocate Abhay Pande was appearing before the
Hon'ble High Court and this Court. Then he stopped appearing on
behalf of defendant no.2(a) to 2(f). Hence defendant no.2(b) engaged
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NM No.4329/2019 ..3.. Suit No.9171/1992
present advocate. Court Commissioner is appointed to record evidence
of parties. Contention of defendant no.2(b) that during cross
examination of defendant no.1, he came to know that written statement
of defendant no.2(a) to 2(f) is not on record. Reasons mentioned for
delay in filing written statement of defendant no.2(a) to 2(f) appears to
be reasonable and satisfactorily. Suit is for partition and separate
possession of Hindu undivided family property. Substantial rights of
legal heirs of defendant no.2 are in dispute. Considering above facts,
circumstances and nature of suit, opportunity needs to be given to legal
heirs of defendant no.2 to substantiate their defence. No prejudice
would be caused to plaintiff if notice of motion made absolute in terms
of prayer clause (a) and (b). However admittedly legal heirs of
defendant no.2 are filing their written statement after inordinate delay.
Notice of motion is taken out belatedly. Hence plaintiffs needs to be
compensated in terms of reasonable costs. In the result, following
order.
ORDER
1. Notice of Motion No.4329 of 2019 is allowed and made absolute
in terms of prayer clause (a) and (b) subject to costs of Rs.6,000/- to be
paid to plaintiffs within 15 days from the date of order.
2. After payment of costs, written statement of legal heirs of
defendant no.2 be taken on record.
3. Accordingly, notice of motion is disposed of.
(S. T. Soor)
Judge
Date : 27.02.2020 Gr. Mumbai.
Typed on : 27.02.2020
HHJ signed on : 27.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27.02.2020, 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
27.02.2020
JUDGMENT/ORDER signed by P.O.
on
27.02.2020
JUDGMENT/ORDER uploaded on 27.02.2020
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