Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4414/2019 ..1.. Suit No.1201/2018
CNR No. MHCC01-012115-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO. 4414 OF 2019
IN
SUIT NO.1201 OF 2018
Navdeep Investment Consultancy
Enterprises Private Limited. .. Plaintif
Versus
Kerfegur Dara Doctor. .. Defendant.
Advocates
Vaibhavi Palsate for the defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 20th February, 2020
ORAL ORDER
Present notice of motion is taken out on behalf of
defendant making prayer to set aside without written
statement order, condone the delay of 572 days in fling
written statement of defendants and to take it on record in
terms of prayer clause (c).
2. Advocate for the defendant submitted that plaintif fled
suit on 25.04.2018 and on same day, written summons was
served on the defendant. On 27.04.2018, plaintif tendered
notice of motion no. 2095/2018 for injunction against the
defendant. Advocate for defendant raised objection of
preliminary issue in reply to notice of motion of the plaintif.
Defendant made statement that it shall adopt due process of
-- 1 of 6 --
NM No.4414/2019 ..2.. Suit No.1201/2018
law for obtaining possession of suit premises from the plaintif.
Matter was adjourned to 14.06.2018 on hearing of preliminary
issues. On 14.06.2018, advocate for the plaintif tendered
original notice of motion and on his request, matter was
adjourned for hearing on 17.09.2018. On 17.09.2018,
preliminary issue was framed and plaintiffs notice of motion
no.2095/2018 is made absolute in view of statement made by
the defendant on 27.04.2018.
3. Defendant tried to settle the matter with the plaintif
hence matter was referred to mediation and adjourned for
appearance before the mediator on 12.02.2019. Matter is not
settled between the parties. Defendant transferred tenancy
right of the suit premises with the consent of landlord in
favour of Kalpesh Joshi and Madhuri Joshi vide Agreement for
Transfer of Tenancy dated 31.05.2019. Advocate for the
defendant sent letter to advocate for the plaintif to join
Kalpesh Joshi and Madhuri Joshi as necessary parties in the
suit. Vide letter dated 01.07.2019, advocate for the plaintif
asked for Agreement for Transfer of Tenancy. Advocate for the
defendant supplied copy of said agreement to advocate for
the plaintif. Defendant was under the impression that the
plaintif will take necessary steps to carry out amendment in
the suit but advocate for the plaintif did not take such steps
and pressed before this Court for without written statement
order. On 01.07.2019, without written statement order is
passed against the defendant.
4. Advocate for the defendant immediately wanted to take
steps for setting aside without written statement order.
However the defendantfs health became serious and he had
to go through medical treatment for Neuropathy, bladder
-- 2 of 6 --
NM No.4414/2019 ..3.. Suit No.1201/2018
issues, diabetes and other old age related issues. During the
same time, wife of the defendant had to undergo two major
operations for her health issues. Hence defendant could not
provide instructions to his advocate to fle written statement.
Thus delay is caused in fling written statement. Defendant
has got prima facie case to succeed in the suit. Hence prayed
for making absolute notice of motion in terms of prayer clause
(c).
5. In present notice of motion, defendant also prayed for
setting aside order dated 17.09.2018 passed in plaintiffs
notice of motion no. 2095/2018 and directing plaintif to
amend the plaint by adding Kalpesh Joshi and Madhuri Joshi as
defendants in terms of prayer clause (a) and (b). Both prayers
cannot be decided in the present notice of motion and
defendant has to take out separate notice of motions.
6. Admittedly writ of summons was served on the
defendant on 25.04.2018. Defendant and his advocate were
having knowledge about fling of written statement. In the
meantime, plaintif taken out notice of motion no. 2095/2018
claiming injunction against defendant. On undertaking given
by the defendant, plaintiffs notice of motion is made absolute.
Then the matter was referred to mediation and as per
mediation report dated 06.03.2019, matter was reported to be
not settled. During pendancy of the suit, defendant
transferred tenancy right to third party and advocate for the
defendant intimated this fact to advocate for the plaintif.
Defendant was under the impression that plaintif will amend
the plaint.
-- 3 of 6 --
NM No.4414/2019 ..4.. Suit No.1201/2018
7. Though advocate for the defendant submitted that
defendant and his wife undergone various health issues and
medical treatment but he did not fle any documents to
support his contention. However, it appears that defendant is
a senior citizen and aged about 76 years old. Hence
contention of advocate for the defendant regarding health
issues of the defendant and his wife can not be disbelieved.
So also, inspite of sufcient opportunities, plaintif and its
advocate remained absent. Hence notice of motion is
proceeded without reply of the plaintif.
8. Suit is for permanent injunction restraining the
defendant and any other person on his behalf from disturbing
possession of suit premises. Contention of advocate for the
defendant that the defendant has good case on merits.
Considering above facts, circumstances and nature of suit,
opportunity needs to be given to the defendant to
substantiate his contention. No prejudice would be caused to
the plaintif if notice of motion made absolute in terms of
prayer clause (c). So far as delay in taking out notice of
motion belatedly is concerned, plaintif can be compensated in
terms of reasonable costs. In the result, following order.
ORDER
1. Notice of Motion No.4414 of 2019 is allowed and made
absolute in terms of prayer clause (c) only subject to costs of
Rs.5,000/- to be paid to the plaintif within 15 days from the
date of order.
2. After payment of costs, written statement of defendant
be taken on record.
-- 4 of 6 --
NM No.4414/2019 ..5.. Suit No.1201/2018
3. Accordingly, notice of motion is disposed of.
(S. T. Soor)
Judge
Date : 20.02.2020 Gr. Bombay
Typed on : 20.02.2020
HHJ signed on : 20.02.2020
-- 5 of 6 --
NM No.4414/2019 ..6.. Suit No.1201/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
20.02.2020, 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
20.02.2020
JUDGMENT/ORDER signed by
P.O. on
20.02.2020
JUDGMENT/ORDER uploaded on 20.02.2020
-- 6 of 6 --