Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-012822-2019. Notice of Motion No. 4685/2019.
in L.C. Suit No. 1993/2017.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 4685 OF 2019.
IN
L.C. SUIT NO. 1993 OF 2017.
Mehboob Sab Amin Sab Qureshi. ...……… ….. PLAINTIFF.
V/s.
MCGM +5. .......................................……. ….. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 28th March, 2023.
APPEARANCES :
Mr. S.N. Kadam, Ld. Advocate for the Plaintiff.
Mrs. Smita Chavhan, Ld. Advocate for Defendant Nos. 1 and 2.
Mr. Uzair Qazi, Ld. Advocate for Defendant No. 3.
*****
01. Defendant No.3 has taken out this Notice of Motion (for the
brevity ‘the NM’), for condonation of delay of about 521 days to file his
written statement (WS). Perused the NM, the accompanying affidavit of
Jehangir Wadia, Trustee of defendant No. 3, and plaintiff’s say. Heard.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the delay of 521 days in filing
of WS needs to be condoned?. ….......... … Yes.
(ii). What Order ? …..............…...................... As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO. 1 :
03. By filing this NM, defendant No. 3 came with a specific case
that it is a Charitable Trust, carrying various social activities and owing
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large number of properties, which is administered by limited number of
staff. On receiving the suit summons, although, he appeared in the suit,
some time was consumed to get approved the WS from the Trustees and
therefore, there has been delay to file the same. It was not deliberate. If
he is not permitted to file his defence, he would sustain the irreparable
loss. The plaintiff strongly objected this NM mainly on the count that it
is hopelessly barred by the law of limitation. Moreover, defendant No. 3
couldn’t explain this delay in filing of his WS and even after due service
of the suit summons. Hence, the NM is liable to be dismissed.
04. Considering the rival stands, it is worth to be noted that by
filing this suit, the plaintiff prayed for a declaration that the Orders dtd.
13.11.2014 and 23.12.2014, passed by the then City Survey Officer, at
Kurla, are bad in law, along-with the other ancillary reliefs. Further, the
plaint averments, more precisely para 5, shows that defendant No. 3 is
owner of the said land. The record reveals that on 01.11.2019 itself,
defendant No. 3 preferred his WS and it was marked exhibit 6. On that
day, his advocate undertook to file appropriate proceedings, seeking the
condonation of delay in filing the WS and the matter was adjourned to
30.11.2019. On that day, defendant No. 3 preferred this NM. True that
even after the ample opportunities, defendant No. 3 couldn’t prefer the
WS timely. But, as of now, it is already filed and only the delay to prefer
the same remained to be condoned. Further, even thereafter, there had
been no substantial progress in the suit. In the circumstances, certainly,
it would be better to decide the suit on merits. Moreover, as defendant
No. 3 is owning the said land, passing of any Order in his absence, may
affect his vital rights in the property. This being the position, I am of the
opinion that this he should be allowed to file WS, by condoning the said
delay. However, considering the latches on his part, it would be just and
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appropriate to impose adequate costs upon him to have further delayed
this trial. Hence, I answered point No.1 in the affirmative and in answer
to point No. 2, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 4685/2019 is made absolute in terms
of prayer Clause (a) only, subject to payment of costs of
Rs.3,000/- (Rs. Three Thousand), to be paid to the plaintiff
till the next date.
(ii). On payment of the costs, defendant No. 3 is permitted to
tender his written statement on the record.
(iii). Notice of Motion No.4685/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 28.03.2023. City Civil Court, Mumbai.
Dictated on : 28.03.2023.
Transcribed on : 05.04.2023.
Checked and Signed on : 15.04.2023.
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CNR NO. : MHCC01-012822-2019. Notice of Motion No. 4685/2019.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
17.04.2023 at 5.05 p.m.
Name of the Stenographer
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 28.03.2023.
Judgment/Order signed by P.O. on 15.04.2023.
Judgment/Order uploaded on 17.04.2023.
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