Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Suit No. 1521-2010
...Order on CS No. 2294-19
MHCC010133432019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
Chamber Summons No. 2294 of 2019
IN
SUIT No. 1521 of 2010
Jareer Ahmad Khan Yahya Khan Gazdhar …Plaintiff.
Versus
Mariym Idris Khan Gazdhar & Ors. ...Defendants.
Appearance:
Adv. V. K. Nair for plaintiff.
Adv. Amardev Uniyal for Defendant No.5.
CORAM : HIS HONOUR JUDGE
SHRI A. K. KALE
(C.R. NO.04)
DATE : 10.10.2025
ORDER
1. The Chamber summons is filed by defendant No. 5 for
condonation of delay of 3378 days in filing written statement and
for taking written statement on record.
2. It submitted that writ of summons served to defendant No. 5 on
18.08.2010. She studied upto 10th standard and in Hindi medium
and she is a pardanashin Muslim lady and not familiar with legal
matters or documents. Her daughter informed her that papers
were sent by the plaintiff and therefore she inquired from the
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plaintiff then plaintiff informed that he filed suit for partition of
property which belongs to Yahya Khan Gazdhar and all the heirs
of Yahya Khan Gazdhar would get their share as per their
entitlement and he was taking care of her interest and therefore
there was no need to worry about the suit. He informed that
some of the heirs wrongly sold the suit property to one
Shahnawaz Sarfaraz Khan and he was challenging the said sale
deed. At that time, she believed that the plaintiff was acting
bonafidely for all heirs.
3. It is further contended that she is staying at Rajsthan and having
good relations with plaintiff and therefore decided not to do
anything about the suit and therefore did not approach to the
advocate. She kept inquiring from the plaintiff about the suit.
Somewhere in the year 2019, she was informed by Mrs.
Abrakunissa Gazdhar, her sister who residing in Mumbai that the
suit building has been sold again to some developer. When she
inquired with plaintiff, he gave evasive answers and therefore she
came to Mumbai in February 2019 and make inquiry of suit
property through her husband with a person Mr. A. A. Waghu and
went back to Rajsthan and came back in the month of September
2019 and again contacted said Mr. A. A. Waghu who handed over
some documents and he advised to consult the advocate. In first
week of September 2019, she approached to an advocate. The
advocate said that he will go through the papers and thereafter,
after 10 days the advocate explained that the suit property was
conveyed to Mohammed Idriskhan Yahiakhan Gazdhar,
Mohhamed Zubairkhan Yahiakhan Gazdhar and Mohamed
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Jabirkhan Yahiakhan Gazdhar who were then minors and the suit
property was transferred to them for their benefit as tenants in
common equal shares. The said indenture dated 17th December
1942 executed by Yahiakhan as father. He further explained that
Mohammed Idris Khan, Mohamed Juber Khan Gazdhar and
Mohamed Zabirkhan Yahiakhan Gazdhar having 1/3rd equal
share in the suit property.
4. Now, it has become necessary to bring the aforesaid facts and
documents on record so that the shares of co-sharers in the suit
property can be correctly apportioned. Thereafter, her advocate
applied for certified copies of the entire record and proceedings
and advised to file chamber summons. Therefore, the delay of
3378 days has been caused in filing written statement. The delay
was due to aforesaid circumstance and it is for bonafide reasons
and due to miss representation by the plaintiff. Therefore, the
delay deserves to be condoned in the interest of justice. If the
written statement is not filed, the matter will not be heard on
merits and the shares of parties will be determined incorrectly
and the defendant No.5 will be seriously prejudiced, whereas if
the written statement is allowed to be filed, the plaintiff will not
be prejudiced in any manner, since matter will be heard on
merits, therefore it is necessary to allow the chamber summons. It
is lastly, prayed to allow the chamber summons.
5. The Chamber summons is opposed by the plaintiff by filing reply.
It is submitted that defendant no.5 has not given cogent and
sufficient reasons for condonation of 3378 days delay in filing
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written statement. Original defendant no.1 and defendant nos.2
to 7 are legal heirs of Mohammed Idris Khan Gazdhar. After
service of summons on 18.08.2010, defendant no.5 neglected to
appear and failed to file written statement. After death of
defendant no.1, the chamber summons was taken out and again
it was served to defendant nos.2 to 7. Thereafter, also defendant
no.5 not appeared. Plaintiff had also filed another chamber
summons after death of defendant no.18 and it was also served to
defendants through Board department of the Court, but
defendants were not appeared. Deceased Yahya Khan filed a Civil
Suit no.2321 of 1966 for declaration. The said suit was decreed
on 02.11.1966. The said decision was not challenged by
Mohammed Idris Khan Gazdhar. Therefore, heirs of Idris Khan
are not entitled for any claim. It is denied that Mohammed Idris
Khan Gazdhar held 1/3rd undivided share in the suit property by
virtue of indenture dated 27.03.1965. The defendant no.5 as well
as defendant no.1 to 4 and 6 & 7 have deliberately suppressed
the fact of decree dated 02.11.1966 passed by City Civil Court,
Bombay against Mohammed Idris Khan Gazdhar. Defendant
nos.1 to 4, 6 & 7 and defendant nos.8 to 23 have not made any
grievance against the plaintiff regarding their share in suit
property and for its partition. It is denied that the delay is for
bonafide reasons and due to misrepresentation by the plaintiff. It
is denied that if the written statement is not filed and matter is
not heard on merit, the shares of parties will be determined
incorrectly. On the above and other grounds, it is lastly prayed to
dismiss the chamber summons.
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6. Perused the chamber summons, reply, record and heard both
sides. The chamber summons is filed by the defendant no.5 for
condonation of delay and taking her written statement on record.
It is not disputed by defendant no.5 that the writ of summons of
suit were served on her on 18.08.2010. As per defendant no.5,
she studied up to 10th standard and in Hindi medium and not
familiar with legal matters or documents. So, after receipt of
summons, she inquired with plaintiff, then plaintiff informed to
her that the suit is filed for partition of property which was
belongs to Yahya Khan and all heirs of Yahya Khan would get
their shares as per their entitlement and he was taking care of her
interest and there was no need to worry about the suit. So, she
believed the words of plaintiff and therefore not appeared in the
suit. As per Defendant no.5, later-on she came to know that
some facts were suppressed by the plaintiff, therefore, she took
advice of the advocate and now want to contest the suit. As per
defendant no.5, some important facts are necessary to be brought
on record, which were not disclosed by the plaintiff and
defendant nos.2 to 7 are also entitled to get the shares as legal
heirs of Yahya Khan in 2/3 undivided share held by him.
7. It is submission of plaintiff that, there is huge delay of 3378 days.
Admittedly, the writ of summons was served, but the defendant
no.5 was not appeared. As per plaintiff, the reasons shown for
condonation of delay are not cogent and sufficient. In support of
his submissions, learned counsel for plaintiff relied upon the case
law of Hon’ble Supreme Court in D. Gopinathan Pillai Vs. State of
Kerala & Anr. [2007 (4) ALL MR 313]. It has been held by the
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Hon’ble Supreme Court in para no.5,
“5. We are unable to countenance the finding rendered
by the Sub Judge and also the view taken by the High
Court. There is no dispute in regard to the delay of
3320 days in filing the petition for setting aside the
award. When a mandatory provision is not complied
with and when the delay is not properly, satisfactorily
and convincingly explained, the court cannot condone
the delay, only on the sympathetic ground. The orders
passed by the learned Sub Judge and also by the High
Court are far from satisfactory. No reason whatsoever
has been given to condone the inordinate delay of 3320
days. It is well-considered principle of law that the
delay cannot be condoned without assigning any
reasonable, satisfactory, sufficient and proper reason.
Both the courts have miserably failed to comply and
follow the principle laid down by this Court in catena
of cases. We, therefore, have no other option except to
set aside the order passed by the Sub-Judge and as
affirmed by the High Court. We accordingly set aside
both the orders and allow this appeal.”
8. Learned counsel for the plaintiff further relied upon the case law
of Hon’ble Bombay High Court in the New India Assurance Co.
Ltd. & Ors. Vs. Hanil Era Textiles Ltd. [2003 (3) All MR 678]. It
has been held by the Hon’ble Bombay High Court in para no.7,
“7. Admitted position is that there is a delay of 242
days which naturally prompted the appellants to move
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the present application. Whether the appellants have
given sufficient, substantial, justifiable, convincing and
genuine reasons for condonation of delay and whether
on the basis of the reasons as are given in the
application whether the delay deserves to be condoned
or not will have to be decided on the basis of relevant
facts in that respect. This Court is aware of the fact that
the courts are not supposed to get influenced by merits
of the case at the time of deciding the application for
condonation of delay, except in such an exceptional
cases wherein if the delay is not condoned, it may
result in to a blatant injustice.”
9. Learned counsel for the plaintiff further relied upon the case law
of Hon’ble Bombay High Court in Padmsey Khimji Chheda & Anr
Vs. Kesarben Laxmichand Dedhia & Ors [2017 (1) Bom. C.R.
497]. It has been held by Hon’ble High Court in para no.27,
“27. The aspect of delay, as dealt with by the learned
Judge in detail and as the same reasons are also raised
in the present appeal for condonation of delay, in our
view, cannot be reopened. The delay issue has attained
finality, specifically in the Arbitration proceedings like
this. No sufficient case is made out. The law of
limitation is settled. This is not the case of reasonable
delay, but the delay so made and the grounds so raised
in the present case, in our view, are not liable to be
condoned. The liberty to withdraw the appeal, that
itself cannot be the reason to hold that the delay
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caused earlier, got condoned. The appellants all the
time are required to explain the delay, which was
recorded by the earlier orders and even otherwise,
unable to justify. The change of law and no knowledge
of judgment, that itself cannot be the reason to
condone the delay. The delay in filing the earlier appeal
after 360 days, remained unexplained. The explanation
given are unacceptable. The mandate of filing
Arbitration appeal in time and/or within a reasonable
time, just cannot be overlooked.”
10. The learned counsel for defendant no.5 submitted that the
specific reason has been given by the defendant for non-
appearance. She fairly admitted that she served with writ of
summons. Thereafter, she contacted the plaintiff and because of
his assurance, she did not appear in the matter believing on the
plaintiff. Therefore, as per learned counsel for defendant no.5,
the reason is sufficient. It is his further submissions that certain
material aspects of the matter are not disclosed by the plaintiff,
those are necessary to be came on record. Therefore, as per him,
for appropriate adjudication of the suit, it is necessary to allow
the defendant no.5 to contest the suit.
11.Learned counsel for defendant no.5 placed his reliance on the
case law relied upon by the plaintiff, wherein it has been
observed that
“the Court are not supposed to get influenced by
merits of the case at the time of deciding the application for
condonation of delay, except in such an exceptional cases
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wherein if the delay is not condoned, it may result in to a blatant
injustice.”
12. The facts of the case in hand are therefore necessary to be
considered in view of observations in the case laws cited by the
plaintiff and on the basis of above submissions made by the
parties. It is seen that after filing of suit, writ of summons was
served to the defendants. Thereafter some defendants were died
therefore, their LRs were brought on record. The written
statement was not filed by some defendants and some defendants
were not appeared in the suit, therefore the matter was
proceeded for evidence of plaintiff without framing of issues. The
affidavit of evidence of plaintiff is filed and thereafter the matter
was fixed for hearing on documents and at that time, the present
chamber summons is come to be filed. It means, though, the writ
of summons of present suit was served on the defendant no.5 in
the year 2010, but the suit was not proceeded further, only
affidavit of evidence is filed and the documents are also not yet
marked. As discussed above, nobody amongst other defendants
contested the suit, but present defendant no.5 wants to contest
the suit by disputing certain facts. It is always desirable to decide
the suit on merit by giving opportunity to the parties to put forth
their case. The written statement of defendant no.5 is also filed
along with present chamber summons, therefore there will be no
further delay in filing written statement. It is true that there is
huge delay after service of writ of summons, therefore, the
plaintiff can be compensated by awarding some reasonable cost.
Hence, the chamber summons is necessary to be allowed with
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cost. I therefore, proceed to pass following order:
ORDER
1. The Chamber Summons No.2294 of 2019 is allowed in
terms of prayer clause (a), subject to costs of Rs.15,000/- to be
paid by the defendant no.5 to the plaintiff on or before next
date.
2. The written statement of defendant no.5 be taken on record
after payment of costs by the defendant no.5.
3. The Chamber Summons is disposed of accordingly.
(Dictated and pronounced in open Court)
(A. K. Kale )
Judge
Date 10.10.2025 City Civil Court, Gr.
Mumbai
Dictated on : 10.10.2025
Transcribed on : 13.10.2025
Checked on : 17.10.2025
Signed on : 18.10.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
-
18.10.2025 at 6.00 p.m. Umesh G. Jadhav
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room)
HHJ Smt. A. K. Kale,
(C.R.No.04)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 10.10.2025
Order signed by P.O. on 18.10.2025
order uploaded on 18.10.2025
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