Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4791-19 in SU 1222-18
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.4791 OF 2019
(CNR No.MHCC01-009369-2019)
IN
SUIT NO.1222 OF 2018.
(CNR No.MHCC01-004107-2009)
Shriram Ramlakhan Yadav }...PLAINTIFFS.
Versus
Laltaprasad Ramlakhan Yadav }...DEFENDANT.
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None appeared for the plaintiff.
Shri.Bhalchandra, learned advocate for the defendant.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 05/10/2021)
1. By filing this Notice of Motion, defendant has prayed to
condone the delay of 19 months caused in filing written statement.
2. Read the affidavit filed in support of Notice of Motion.
Despite granting sufficient opportunities, plaintiff failed to file reply
hence, Notice of Motion proceeded further without reply of the plaintiff
as per order dt.01/09/2021. Heard learned Shri.Bhalchandra advocate
for defendant. Nobody appeared for the plaintiff to advance argument.
3. Learned advocate for defendant argued that defendant has
already filed his written statement along with this Notice of Motion,
delay in filing written statement has caused as the previous advocate
had told the defendant that written statement will be filed later on,
defendant is layman, new advocate is appointed on 14/10/2019 and
the delay is not intentional hence, Notice of Motion may be allowed and
written statement of the defendant may be taken on record.
4. Affidavit of service filed on 08/06/2018 by the plaintiff
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shows that defendant is served with writ of summons on 05/05/2018.
This Notice of Motion is taken out on 09/12/2019. Apparently, there is
delay of 19 months in filing written statement.
5. Suit was initially filed by making BMC as defendant No.2.
Subsequently, plaintiff has deleted defendant No.2 by filing application
on 08/06/2018. Plaintiff has thereafter amended the plaint by deleting
defendant No.2. Thereafter matter was transferred from BMC Court to
C.R.No.4. As per order dt.09/10/2018, the then Presiding Officer of
C.R.No.4 had directed to issue notice to present defendant through
bailiff. Said notice was served on 10/10/2018 as per bailiff report
Exh.3. Thereafter, on 20/10/2018, plaintiff had taken out Chamber
Summons No.2147/2018 which came to be dismissed as per order
dt.09/03/2020. Before decision of said Chamber Summons, defendant
has taken out this Notice of Motion for delay condonation.
6. Having gone through the affidavit filed in support of the
Notice of Motion, it appears that defendant is claiming that delay in
filing written statement has caused as defendant is layman and as his
previous advocate had told him that written statement will be filed later
on. It is not in dispute that defendant has changed his previous
advocate however, it does not appear that defendant has taken any
action against his previous advocate for any reason whatsoever. May
that it be so, it is a matter of record that defendant has already filed his
reply to N.M.No.2219/2018 on 19/10/2018. It does not appear that
defendant has tried to get any disadvantage by not filing his written
statement within the stipulated period prescribed by Order-8 Rule-1 of
C.P.C. Having regards to it so also, having regards to the fact that
nobody is attending the matter for and on behalf of the plaintiff since
long and having regards to the fact that written statement of defendant
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3 NM 4791-19 in SU 1222-18
is produced with the Notice of Motion itself, this Court is of the opinion
that it would be in the interest of justice to allow this Notice of Motion
by imposing certain cost on the defendant. Thus, an order.
O R D E R
Notice of Motion No.4791 of 2019 is allowed in terms of its
prayer clause “a” subject to cost of Rs.5000/- (Five Thousand
Rupees only).
Defendant shall pay the amount of cost either directly to
the plaintiff or shall deposit the same in the Court on or before
next date.
Date : 05/10/2021. (P.P.RAJVAIDYA)
Dictated on : 05/10/2021. Judge, C.R.No.62,
Checked on : 05/10/2021. City Civil Court,
Signed on : 05/10/2021. Mumbai.
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4 NM 4791-19 in SU 1222-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
20.10.2021 at 3.35 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 05.10.2021
Order signed by P.O. on 05.10.2021
Order uploaded on 20.10.2021
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