Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4350/19 ..1.. Suit No.3342/18
CNR No.MHCC010119572019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.4350 OF 2019
IN
SUIT NO.3342 OF 2018
Lakshmi Subramanian and another .. Plaintiffs
Versus
Priya Rajulu and another .. Defendants
Ms. Siddiqui, advocate for plaintiffs.
Ms. Ketaki Mishra, advocate for defendant No.1.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 29th January, 2020
ORAL ORDER
Perused notice of motion, affidavit in support of it, reply of
plaintiffs and roznama of proceeding. Heard respective counsel for
parties.
2. Notice of motion is taken out by defendant No.2 for condoning
delay caused in filing written statement by her and to take her written
statement on record.
3. It is the contention of defendant No.2 that writ of summons was
served upon her on 1st March, 2019. Thereafter, on 11.04.2019, Adv.
Arun Raj appeared on her behalf and her daughter and undertakes to
file vakalatnama and sought time to file reply to notice of motion No.60
of 2018. So, matter was adjourned to 27.06.2019. However, in May,
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2019, Adv. Arun Raj called her daughter and informed her that he is
preoccupied with other commitment and unable to look after their
matter henceforth and requested to engage some other advocate.
Thereafter, they took some time to engage new advocate. On
15.06.2019, she engaged present advocate and on 27.06.2019, present
advocate appeared and sought time to file reply and undertakes to file
vakalatnama on her behalf. Therefore, matter was adjourned to
31.07.2019. On that date, their advocate filed vakalatnama on their
behalf and also filed reply to notice of motion. She also requested to
take written statement on record but same was not taken on record on
the count of delay caused in filing of the same and Court has directed
her advocate to take out appropriate application for condonation of
delay. Their advocate informed them about said fact and asked them to
meet her to draft application for condonation. Her daughter informed
their advocate that she is in Tamilnadu to take care of defendant No.2
and told to her advocate that they would come to Mumbai soon and
they reached to Mumbai on 14.09.2019 and met their advocate to make
present application. Thus, delay has been caused in filing of written
statement. It is further contended that delay caused is unintentional and
due to change of advocate. She has an excellent case on merits and
accordingly, she made prayers in above terms.
4. Plaintiffs opposed notice of motion on the count that no
reasonable or believable explanation is given by the defendant No.2 and
her statement is vague. She is not serious about the matter and there is
gross negligence on her part. Accordingly, they prayed for dismissal of
notice of motion.
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5. Before adverting to the facts, I would like to mention that it is a
settled law that Order VIII Rule 1 of CPC is not mandatory and in
specific circumstances written statement can be accepted with reasons.
It is also held that in an adversarial system, no party should be denied
an opportunity in participation of the justice dispensation system
(Salem Bar Association V/s Union of India 2003 AIR SCC 189 and
Zolba V/s Keshav 2008 AIR SCC 2099).
6. Learned advocate for defendant No.2 placed reliance upon
authority in the case of Sambhaji and others Vs. Gangabai and
others, 2009 (1) BomCR 81 wherein ratio laid down is that, Merely,
because a provision of law is couched in negative language implying
mandatory character, the same is not without exceptions. The
procedural law should not ordinarily be construed as mandatory.
Provisions of CPC or any other statute ought not to be construed in
manner which would leave court helpless to meet extraordinary
situations in ends of justice unless compelled by express and specific
language of statute.
In the said case considering the fact that close relatives were
litigants, it is observed that a liberal approach is called for. In view of
above legal position, now, I consider present notice of motion.
7. It is apparent that parties to the present suit are close relatives.
Therefore, in view of authority in the case of Sambhaji (cited supra)
liberal approach is required to be taken in present matter. It seems that
this defendant has assigned brief to some other advocate and thereafter
engaged present advocate. Time has been taken for search of advocates
and it also appears that it was not advised to her that written statement
is required to be filed within time. Present defendant No.2 has annexed
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written statement. It is clear that it was affirmed on 29.07.2019. So,
contention of defendant No.2 that on 31.07.2019 written statement was
not taken on record for want of delay condonation application appears
probable. When she has affirmed written statement on 29.07.2019 then
it can be said that she has no intention to delay the trial of present suit.
In the facts of present matter it is unjust to deprive defendant No.2 from
contesting the matter on merits. Therefore, in the interest of justice and
to do substantial justice I am inclined to allow present notice of motion
by imposing certain costs upon defendant No.2. Hence, pass following
order.
ORDER
1. Notice of Motion No.4350 of 2019 is allowed and made absolute
in terms of prayer clauses (a) and (b) subject to payment of
costs of Rs.3000/ (Rupees Three Thousand only) to the
plaintiffs within period of two weeks from the date of this order.
Defendant No.2 is at liberty to deposit the costs
payable to the plaintiffs in the Court.
2. After payment of costs written statement of defendant No.2 be
taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 29.01.2020 Gr. Bombay
Typed on : 29.01.2020
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
31.01.2020
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
29.01.2020
JUDGMENT/ORDER signed by P.O.
on
30.01.2020
JUDGMENT/ORDER uploaded on 31.01.2020
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