Final Order 1

Order Details: Notice of Motion
Pdf Text: Daily Status
IN THE COURT OF :COURT 9 ADDL SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0104576/2019
Mr. Dattaram Ganapat Khatate Vs Mr. Ashok Ganpat Khatate and Ors.
Date : 04-03-2020
Business : Advocate Mr. Kava for Plaintiff present Advocate Mr. M. M.
Shetty for Defendant no.1 and 2 present Advocate Mr. Ganesh
Dhote for Defendant no.3 to 7 present Advocate Mr. Sanjay
Joshi for Defendant no.8 and 9 present ORDER ON NM
NO.4576/19 This Notice of Motion is taken out by Defendant
no.3 to 7 for condonation of delay caused in filing their
Written Statement. Defendant no.6 has filed her affidavit in
support of Notice of Motion contending that Defendant nos.3
to 7 are old age persons suffering from ailments and therefore
those Defendants could not give the instructions to their
advocate for filing Written Statement on their behalf. It is
contended that Plaintiff will not suffer from prejudice if the
Notice of Motion will be allowed. Plaintiff Dattaram Khatate
has filed his affidavit in reply and requested to allow Notice of
Motion taken out by Defendant nos.3 to 7. Defendant nos. 1, 2,
8 and 9 also have filed their affidavits of reply to resist the
Notice of Motion contending that Plaintiff and Defendant
nos.3 to 7 are in collusion with each other. It is denied that
Defendant nos.3 to 7 were unable to give instructions to their
lawyers as those Defendants were suffering from various
ailments. According to Defendant nos.1,2,8 and 9 Notice of
Motion taken out by Defendant nos.3 to 7 is false and it is
necessary to be dismissed. According to Defendant nos.8 and 9
contents of affidavit filed in support of Notice of Motion are
false in respect of consent affidavit dated 03/01/1990. Heard
advocate for Defendant nos.3 to 7, Plaintiff&amp#039s
advocate and advocate for Defendant nos.1,2,8 and 9.
Admittedly, 9 months delay is caused in filing Written
Statement by Defendant nos.3 to 7. Actually, in plaint age of
none of the Defendants is mentioned, however Defendant
nos.1, 2 and 9 are present before the Court and they have
submitted that age of Defendant nos.3 to 7 may be more than
60 years. The court can take judicial note of the fact that senior
citizens can suffer from various ailments due to age factor and
therefore if they are contending that they are suffered from
ailments said statement can not be discarded due to their old
age. Any how, Defendant nos.3 to 7 are intending to contest
the suit by filing their Written Statement and according to
Defendant nos.1,2,8 and 9 Defendant nos. 3 to 7 are in
collusion with Plaintiff. Said aspect of collusion will have to
be proved by the party who has alleged such collusion by
adducing cogent evidence and at the time of considering the
Notice of Motion for condoning the delay, in my opinion the
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aspect of collusion will not come across the way. Further, it is
always better for Plaintiff to get the contested decree, if at all,
he is entitled to it. In such circumstances, I find that Notice of
Motion taken out by Defendant nos.3 to 7 can be allowed and
delay caused in filing their Written Statement can be condoned
subject to cost of Rs.4500/- by all those Defendants together to
Plaintiff, hence, I proceed to pass following order - ORDER 1.
Notice of Motion no.4576 of 2019 is made absolute in terms of
prayer clause (a) and (b), subject to cost of Rs.4,500/- to be
paid for free legal aid, because Plaintiff has given no objection.
2. It is made clear that after Defendant nos.3 to 7 will deposit
cost amount, Written Statement filed by Defendant nos.3 to 7
will be accepted and exhibited. Case is adjourned to
20/04/2020 for Compliance.
Nature of Disposal : ALLOWED
Disposal Date : 04-03-2020
COURT 9 ADDL SESSIONS JUDGE
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