Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4349/19 ..1.. Suit No.3342/18
CNR No.MHCC010119612019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.4349 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.1 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.1 that writ of summons was
served upon her on 5th January, 2019. Thereafter, she approached to
Adv. Arun Raj and requested him to represent her and her mother in the
present matter who accepted her request and agreed to appear and
represent her and her mother. On 11.04.2019, Adv. Arun Raj appeared
on her behalf and her mother and undertakes to file vakalatnama and
sought time to file reply to notice of motion No.60 of 2018. So, matter
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was adjourned to 27.06.2019. However, in May, 2019, Adv. Arun Raj
called her and informed that he is preoccupied with other commitment
and unable to look after her matter henceforth and requested to engage
some other advocate. Thereafter, she searched for new advocate and
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 the
application for condonation.
4. It is further contended that she was in Tamilnadu to take care of
her ailing mother who is 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 also 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.
5. Plaintiffs opposed notice of motion on the count that no reasonable
or believable explanation is given by the defendant No.1 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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6. 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).
7. Learned advocate for defendant No.1 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.
8. 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 advocate
and it also appear that it was not advised to her that written statement
is required to be filed within time. Present defendant No.1 has annexed
written statement. It is clear that it was affirmed on 29.07.2019. So,
contention of defendant No.1 that on 31.07.2019 written statement was
not taken on record for want of delay condonation application appears
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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.1
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.1. Hence,
pass following order.
ORDER
1. Notice of Motion No.4349 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.1 is at liberty to deposit the costs payable
to the plaintiffs in the Court.
2. After payment of costs written statement of defendant No.1 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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