Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.4892 OF 2019
IN
S.C.SUIT NO.627 OF 2018
(CNR NO:MHCC01-013385-2019)
1. Mrs.Rose Santan Rodrigues & Anr. ... Plaintiff
Versus
1. Mr.Michael Rodrigues and Ors. ... Defendants
CORAM : HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 17th FEBRUARY, 2020
Mr.Vikas Murudkar, ld. adv. for plaintiffs.
Mr.Kale, ld adv. for defendant nos.2 to 4.
O R D E R
1. This notice of motion is taken out by defendant no.4 for
setting aside No W.S. and no reply order dated 19/12/2018 passed by
my learned predecessor against defendant no.4.
2. Defendant no.4 Mrs.Rosita Fernandes filed her affidavit in
support of notice of motion contending that defendant no.1 informed
defendant no.4 that defendant no.1 will file W.S. on behalf of defendant
no4. However, she has not given any instruction to the advocate for
defendant no.1 to file her written statement in the suit. In the month of
August, 2018, defendant no.1 had come to defendant no.4 with copy of
W.S. and after going through the said W.S. she has realized that
defendant no.1 is insisting defendant no.4 to support the case of
defendant no.1, even though the defence raised by the defendant no.1
is not in fact actual, hence she did not agree to sign the said W.S.
Meanwhile, defendant no.4 had fallen sick as her legs were swollen due
to Varicose veins problem and she was under medical treatment. Any
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how, she recovered from illness in the month of December, 2018.
Thereafter she approached her present advocate to file W.S. in the
matter and as such delay is caused in filing W.S. on her behalf. Hence,
she has prayed to allow the notice of motion.
3. Plaintiff no.1 has resisted the notice of motion by filing
affidavit of reply contending that writ of summons was served upon
defendant no.4 and the story raised by her being concocted cannot be
believed. It is pointed out that defendant nos.1 and 4 have presented
that they have appointed the advocate. Plaintiffs have contended that
defendant no.4 will have to substantiate the allegations made by her
against defendant no1. It is contended that defendant no.4 has not
produced any documentary evidence about her illness as contended.
Defendant has denied that the delay in filing W.S. is caused due to
illness of defendant no.4.
4. Heard advocate for defendant no.1 and advocate for
plaintiff. Plaintiffs’ advocate submitted that defendant no.4 has believed
real brother defendant no.1 and further she was suffering from illness
hence delay is caused in filing written statement. Plaintiffs’ advocate
submitted that contentions raised in the affidavit filed by defendant
no.4 are baseless, hence notice of motion is necessary to be dismissed.
Advocate for defendant no.1 fairly submitted that defendant no.1 has
no objection to allow the notice of motion taken out by defendant no.4,
however defendant no.1 does not agree with allegations made by
defendant no.4 against defendant no.1
5. I have given serious consideration to the arguments.
Defendant no1 has annexed the certificate issued by one Dr.Vinay
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S.Joshi to her affidavit in support of her contention. At this stage it will
not be better for this Court to go into allegations made by defendant
no.4 against defendant no.1 and only the medical certificate filed by
defendant no.4 can be considered for decision of this notice of motion.
Any how, admittedly delay of 240 days is caused in filing written
statement by defendant no.1. What is noticed is that defendant no.4 is
intending to contest the suit by raising her own defence different than
defendant no.1. Hence I find that if fair opportunity will be given to
defendant no.4 to contest the suit, no harm or prejudice will be caused
to plaintiffs because it is always better to have the decree on merits if at
all plaintiffs are entitled to it. In such circumstances, I find that
defendant no.4 can be directed to bear some costs for making absolute
this notice of motion and No W.S. and no reply order passed against her
can be set aside subject to the cost to be paid to plaintiffs. Hence, I
proceed to pass the following order.
O R D E R
Notice of Motion No.4892 of 2019 is made absolute in terms of
prayer clause(a) subject to cost of Rs.2400/- to be paid by
defendant no.4 to plaintiffs.
Sd/-
(K.P.NANDEDKAR)
17/02/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 17/02/2020
Transcribed on : 13/03/2020
Signed by HHJ on : 16/03/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
16/03/2020 03.00PM B.R.HATEKAR (S.G.)
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 17/02/2020
Judgment/order signed by P.O on 16/03/2020
Judgment/order uploaded on 16/02/2020
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