Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No. 4833/2019
in L.C. Suit No. 1675/2018.
MHCC010132102019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4833 OF 2019.
IN
L.C. SUIT NO. 1675 OF 2018.
India Finance and Construction …........…. ….. PLAINTIFF.
V/s.
Chimanlal Maneklal Gandhi (Late) +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 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. 4833/2019
in L.C. Suit No. 1675/2018.
he is the owner of stall No. 8 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 said matter. Moreover, that suit
was High Court time bond matter 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. Further, this suit was
pending for the hearing on NM and it was never listed for filing written
statement. Therefore, he did not realize and the written statement could
not be filed. The delay, in filing defense, is not deliberate or intentional
and therefore, the same may be condoned. He is having a good case on
merits. The plaintiff objected this NM, as it is filed to mislead this Court.
The period prescribed for filing of written statement as per O. VIII Rule
1 of the CPC has already expired. 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.
04. Having considered the rival stands, at the outset, it is to be
noted that by filing this suit, the plaintiff came with as 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 10 sq.ft. area of the said land,
as a trespasser. He unlawfully put up a stall, partly on his property and
partly on the footpath of Mungibai Road, which belonged to defendant
No.2. In this way, he encroached upon the land of CTS No. 965, to the
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3 Notice of Motion No. 4833/2019
in L.C. Suit No. 1675/2018.
extent of 10 sq. ft. He also claimed his ownership upon the encroached
land by adverse possession. However, he is the trespasser and also liable
to pay compensation, damages and mesne profit. Defendant No. 2 is the
proper party in the suit and no relief is claimed against him. With these
facts, he filed this suit and asked for reliefs of declaration to the effect
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 1675/2018. 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. 4833/2019
in L.C. Suit No. 1675/2018.
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. 4833/2019 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. 4833/2019
in L.C. Suit No. 1675/2018.
“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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