Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No. 4830/2019
in L.C. Suit No. 1672/2018.
MHCC010132052019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4830 OF 2019.
IN
L.C. SUIT NO. 1672 OF 2018.
India Finance and Construction …........…. ….. PLAINTIFF.
V/s.
Ghanshyam Keshavji Khutiya +1.………... ….. DEFENDANTS.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 05th July, 2022.
APPEARANCES :
Ms. Komal Sharma, Ld. Advocate for the Plaintiff.
Ms. Apurva Kulkarni, Ld. Advocate for Defendant No.1.
Ms. J.V. Mhatre, Ld. Advocate for Defendant No. 2.
01. Defendant No.1 has taken out this Notice of Motion (for the
brevity 'the NM'), for the condonation of delay of 1464 days in filing of
his written statement. Perused the NM, his accompanying affidavit and
the reply of plaintiff. Heard both the sides.
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 delay in filing written statement
by defendant No.1 is to be condoned ? … …Yes.
(ii). What Order ? …..............….................... …As per final Order.
REASONS FOR THE FINDINGS
AS TO POINT NOS. 1 TO 2 :
03. By filing this NM, defendant No. 1 came with the case that
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2 Notice of Motion No. 4830/2019
in L.C. Suit No. 1672/2018.
he is the owner of stall No. 7 and is earning his livelihood from the said
business. In this matter, the suit summons was duly served upon him in
November, 2015. However, at that time, as S.C. Suit No. 4726 of 2011,
filed by him and the others against this plaintiff, was pending before the
concerned Court, he was attending the same. Further, this suit was High
Court time bond and therefore, it was being expedited. It was necessary
to attend the same on priority basis and therefore, he could not instruct
his advocate in the present suit. Moreover, the matter was pending for
hearing on NM and it was not listed for filing written statement. Hence,
he did not realize and the written statement could not be preferred. The
delay in filing defense is not deliberate or intentional and therefore, the
same may be condoned. He is also having a good case on merits. On the
contrary, the plaintiff objected this NM because it is filed to mislead this
Court. The period prescribed for filing of written statement as per Order
VIII Rule 1 of the CPC is lapsed. There are no reasons for condonation
of delay for 1464 days. Defendant No. 1 was served with suit summons
in November 2015. He further submitted that the said matter, wherein
defendant No.1 claimed adverse possession, was dismissed by the Court
on 04.03.2022. He denied that defendant No.1 was so busy in attending
the said matter and submitted that this delay is deliberate one.
04. Having considered the rival stands, at the outset, it is to be
noted that by filing this suit, the plaintiff came with a specific case that
he is the Company, incorporated under the Companies Act, 1956. He is
the owner of the plot bearing CTS No. 965, at Vile Parle (E), Mumbai –
57. Defendant No. 1 is in unlawful use of 22 sq.ft. area of the said land
and is a trespasser. He illegally put up one stall, partially on his property
and partly on footpath of Mungibai Road, which belonged to defendant
No.2. In this manner, he encroached upon the land of CTS No. 965, to
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3 Notice of Motion No. 4830/2019
in L.C. Suit No. 1672/2018.
the extent of 22 sq. ft. He also claimed ownership on encroached land
by adverse possession. In fact, he is the trespasser and also liable to pay
compensation, damages and mesne profits. Whereas, defendant No.2 is
only the formal party in the suit and no relief is claimed against him. On
these facts, he filed this suit and asked for the reliefs of declaration that
defendant No. 1 is a trespasser, mandatory injunction for removal of the
said encroached portion, for its possession, damages, etc..
05. Considering the tenor of such plaint averments, it is crystal
clear that this suit is filed mainly against defendant No.1, alleging that
he is a rank trespasser. The record shows that though, the suit is filed in
the year of 2015, initially before the City Civil Court at Dindoshi, it was
transferred to the City Civil Court, Main Branch, and also re-numbered
as 1672/2018. It appears that since the inception of the matter, there is
no substantial progress and still, it is pending at the initial stage. Even,
defendant No. 2 did not contest the suit. And, the trial is to commence.
Being so, no vital rights could be accrued in favour of the plaintiff, only
because defendant No.1 failed to file his written statement within time.
True it is that there has been delay on his behalf to file his defense and
limitation for filing of the same is already expired. However, it is equally
true that he is the only contesting defendant of this suit and could show
his bonafide to proceed with the suit, by filing copy of written statement
along-with this NM. Moreover, it is always better to have trial on merits
rather to close it abruptly for one of the parties. That apart, no prejudice
would be caused to the plaintiff, if he is permitted to contest this suit.
However, surely, while doing so, the rules of natural justice do require
imposition of adequate costs upon him to have delayed filing of written
statement. Consequently, to decide the suit finally, I am of the view that
he should be allowed to file written statement. Hence, I answered point
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4 Notice of Motion No. 4830/2019
in L.C. Suit No. 1672/2018.
No.1 in the affirmative and to answer point No. 02, I pass the following
Order :
-: O R D E R :-
(i). Notice of Motion No. 4830/2019 is made absolute in terms
of prayer clause (a) and (b), subject to payment of costs of
Rs.1,500/- to the plaintiff, positively till the next date.
(ii). On payment of this cost, the delay in filing of the written
statement by defendant No.1 would stand condoned. In
default, the consequential order to follow.
(iii). The parties to expedite the trial.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 05.07.2022. City Civil Court, Mumbai.
Typed on Computer on : 05.07.2022.
Checked and Signed on : 05.07.2022
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5 Notice of Motion No. 4830/2019
in L.C. Suit No. 1672/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME Typed by
07.07.2022 at 4.00 p.m. Mr. Rupesh Dalvi
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 05.07.2022
Judgment/Order signed by P.O. on 05.07.2022
Judgment/Order uploaded on 07.07.2022
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