Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM No.442919 IN SUIT No.153916
MHCC010121272019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4429 OF 2019
IN
SUIT NO.1539 OF 2016
Mrs. Lata W/o. Hemant Garg ] ...Plaintiff.
Versus
State of Maharashtra & Others ]…Defendants.
Appearance:
Ld. Advocate Sana Khan for Plaintiff.
Ld. Advocate S.R. Patel for Defendant No.2.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 02/01/2023
ORAL ORDER
1) Defendant No.2 has taken out present notice of motion for setting
aside order dtd.17/9/19 to proceed without reply and written
statement of defendant No.2, for condonation of delay in filing written
statement and reply, if any and for taking his written statement and
reply on record.
2) Perused the notice of motion and affidavit in support of notice of
motion, affidavit in reply of the plaintiff and record. Heard arguments
advanced by Ld. Advocate for defendant No.2 and Ld. Advocate for
plaintiff.
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2 NM No.442919 IN SUIT No.153916
3) Ld. Advocate for defendant No.2 argued that writ of suit summons
and notice of notice of motion taken out by plaintiff was never served
to the defendant No.2. After getting knowledge of the suit defendant
No.2 Suo Moto appeared in the matter on 4/7/19 and on 17/9/19
court passed order to proceed without reply and written statement of
defendants. As writ of suit summons and notice of notice of motion
was not served to the defendant No.2 there is just cause for setting
setting aside the order dtd.17/9/19 and to take on record the written
statement and reply of defendant No.2 by condoning delay if any.
4) On the other hand, Ld. Advocate for plaintiff argued that plaintiff
failed to demonstrate any sufficient and exceptional cause for setting
aside the order dtd.17/9/19 and for condonation of delay in filing
written statement. Therefore, Ld. Advocate for plaintiff submitted that
notice of motion be dismissed.
5) From the matter on record it appears that defendant No.2 has
stated on solemn affirmation that notice or writ of summons in the
present suit was not served to him. Though plaintiff denied the above
fact, plaintiff failed to bring on record any material to show that writ of
suit summons and notice of notice of motion tendered by plaintiff was
served to the defendant No.2. Therefore, from the matter on record
there appear just cause for non appearance of the defendant No.2
earlier and for failure of defendant No.2 to file reply to the notice of
motion and written statement. As such defendant No.2 has
demonstrated sufficient and exceptional cause for setting aside order
dtd. 17/9/19 to proceed without reply and written statement of
defendant No.2 and for condonation of delay in filing his written
statement. Moreover, considering the nature of the suit in the interest
of justice it will be appropriate to give an opportunity to the defendant
No.2 to defend the suit by filing its written statement and to defend
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3 NM No.442919 IN SUIT No.153916
the notice of motion of plaintiff by filing his reply. No prejudice will be
caused to the plaintiff if the present notice of motion is made absolute.
6) Considering the matter on record and above discussion, present
notice of motion deserves to be made absolute. Therefore, court
proceeds to pass following order:
ORDER
1) Notice of Motion No. 4429/2019 is made absolute.
2)Written statement of defendant No.2 and affidavit in reply of defendant
No.2 to the Notice of Motion No.2128/16 be taken on record.
3) Notice of Motion No.4429/2019 is disposed off accordingly.
Date : 02/01/2023. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :2/1/2023.
Typed on : 2/1/2023.
Draft received on:2/1/2023.
Checked on :2/1/2023.
Corrected & signed on :9/1/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/1/2023 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
2/1/2023.
JUDGMENT/ORDER signed by P.O.
on
9/1/2023.
JUDGMENT/ORDER uploaded on 10/1/2023.
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