Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.4454/2019 ..1.. In S.C. Suit No.947/2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 4454 OF 2019
IN
S.C. SUIT NO. 947 OF 2019
CNR NO :- MHCC01-012221-2019
Dimple Deepak Sanghvi,
Through her Power of Attorney holder
Devyani Desai, Alias Devyani Sanghvi,
Aged – 24 Years,
Residing At : Flat No. 10AB,
Maker Apartment, 232,
Walkeshwar Road, Opp. Hanuman Mandir,
Malabar Hill, Bombay - 400 006. ...Plaintiff
Versus
1. Devang Jawahar Sanghvi,
Mont Vent Pristine, Flat No. 902,
9th Floor, Phase - 2, Behind Khadki
Railway Station, Near St. Thomas
Church, Khadki, Pune - 411 020.
2. Bhakti D. Mehta,
Shreya Bungalow,
Behind Ajit Apartment,
Opp. Iyengar Yoga Institute,
Harekrishna Mandir Road,
Model Colony, Shivaji Nagar,
Pune - 411 016.
3. Neeta D. Mehta,
A/603, Madhuben Apartment,
Behind Patel Nagar, M.G.X. Road
No. 4, Kandivali West,
Bombay - 400 067. ...Defendants
Appearance :-
Mr. Bhuta, Advocate for the Plaintiff.
Ms. Harsha Shah, Advocate for defendant No. 1.
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Notice of Motion No.4454/2019 ..2.. In S.C. Suit No.947/2019
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 18TH FEBRUARY, 2021.
ORAL ORDER
By this notice of motion defendant No. 1 has sought
permission to file written statement on record on the ground that, the
written statement was delayed by 119 days. However, the delay is
neither intentional nor deliberate. In fact at the earliest opportunity the
defendant sought to tender written statement. However, it was
considered as delayed and so notice of motion is taken out.
2. The plaintiff has opposed the notice of motion on the
ground that, writ of summons is served on defendant No. 1 on
16.04.2019 and the next date was 23.04.2019. However, defendant No.
1 did not appear on that day and on next date i.e. 08.08.2019 he
attempted to tender written statement which was beyond period of
limitation. Thereafter, on next date he did not take out notice of motion
but has taken it out on 18.11.2019 which was beyond the limitation.
He has not provided the explanation for delay of 27 more days i.e. the
delay calculated by him. In fact there is dleay of 175 days. The grounds
in the notice of motion are false and misleading.
3. Perused. Heard.
4. Advocate for plaintiff submitted that, the reasons in the
affidavit in support of notice of motion are cogent. Considering absence
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Notice of Motion No.4454/2019 ..3.. In S.C. Suit No.947/2019
of
mala fide on the part of defendant No. 1, the written statement be
taken on record.
5. Advocate for plaintiff submitted that, no proper explanation
is given to explain the delay and so the notice of motion cannot be
allowed.
6. He relied on Mohammed Yusuf V/s. Faij Mohammad & Ors.
In Civil Appeal No. 7209/2008, (Arising out of S.L.P. (C) No.
3311/2008) dated 02.12.2008, wherein the Hon’ble Supreme Court has
observed that,
“15. A dispensation that makes Order 8 Rule 1
directory, leaving it to the courts to extend the time
indiscriminately would tend to defeat the object
sought to be achieved by the amendments to the Code.
It is, therefore, necessary to emphasise that the grant
of extension of time beyond 30 days is not automatic,
that it should be exercised with caution and for
adequate reasons and that an extension of time
beyond 90 days of the service of summons must be
granted only based on a clear satisfaction of the
justification for granting such extension, the court
being conscious of the fact that even the power of the
court for extension inhering in Section 148 of the
Code, has also been restricted by the legislature. It
would be proper to encourage the belief in litigants
that the imperative of Order 8 Rule 1 must be adhered
to and that only in rare and exceptional case, will the
breach thereof will be condoned. Such an approach by
courts alone can carry forward the legislative intent of
avoiding delays or at least in curtailing the delays in
the disposal of suits filed in courts. The lament of Lord
Denning in Allen Vs. Sir Alfred McAlpine & Sons that
law's delay have been intolerable and last so long as to
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Notice of Motion No.4454/2019 ..4.. In S.C. Suit No.947/2019
turn justice sour, is true of our legal system as well.
Should that state of affairs continue for all times?"
15. In view of the authoritative pronoucments of this
Court, we are of the opinion that the High Court
should not have allowed the writ petition filed by the
rspondent, particularly, when both the leanred trial
judge as also the Revisional Court had assigned
sufficient and cogent reasons in support of their
orders.”
7. Proceedings indicate that, there is nothing on record to
indicate that defendant No. 1 is served on 13.04.2019. There is neither
an affidavit of service nor report of baillif indicating service of writ of
summons on defendant No. 1 on 16.04.2019.
8. Be that as it may, what appears is that, after 23.04.2019 the
suit was adjourned to 08.08.2019 and on that very day defendant No. 1
sought to tender the written statement which was opposed by the
plaintiff. The notice of motion was however tenedered on 18.11.2019
i.e. almost after 2 months.
9. The attempt of defendant No. 1 made on 08.08.2019
reveals that, he sought to tender the written statement on the very next
fixed date. Thus there appears no
malafide or intentional or deliberate
delay on the part of defendant No. 1 in not filing the written statement.
10. I have gone though the authority, cited
supra, wherein the
observations of the Hon’ble Suprme Court were made in view of the fact
that, the summons was served on the defendant in the year 2002 and
the written statement was sought to be tendered in the year 2005 that
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Notice of Motion No.4454/2019 ..5.. In S.C. Suit No.947/2019
too without seeking condonation of delay. In those circumstances the
observations were made.
11. In the present case, such are not the facts. Considering the
circumstances of present case and that defendant No. 1 has not
deliberatly delayed the proceedings and had sought to tender written
statement on the earliest possible opportunity, I hold that, notice of
motion needs to be allowed. Hence, following order :-
ORDER
1. Notice of Motion No. 4454/2019 is made absolute
in terms of prayer clause (a).
2. The written statement filed by defendant No. 1 be
taken on record and marked as exhibit.
(AJIT N. MARE)
Judge,
Date : 18.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 18.02.2021
Transcribed on : 22.02.2021
HHJ Signed on : 23.02.2021
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Notice of Motion No.4454/2019 ..6.. In S.C. Suit No.947/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
24.02.2021 10.57 a.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 18.02.2021
Order signed by P. O. on 23.02.2021
Order uploaded on 24.02.2021
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