Bombay High Court
Vasant Rama Bavise @ Dhodi vs Dattatraya L. Bhavise And 4 Ors on 16 August, 2017
Bench: K.K. Tated
This Order is modified/corrected by Speaking to Minutes Order dated 08/09/2017
psv 1 16 nms 1033-16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1033 OF 2016
IN
SUIT NO.1790 OF 2012
Dattatraya Laxman Bhavise & Ors. ...Applicants
(Org.Defendants)
In the matter between
Shri Vasant Rama @ Dhobi Bavise ...Plaintiff
Vs.
Dattatraya Laxman Bhavise & Ors. ...Defendants
-----
Mr.Bhavin Gada with Mr.Vasim Shaikh and Mr.Aurilius D'Silva i/b.
M/s. Pravin Mehta & Mithi & Co., Advocates for Defendant Nos.1 to
3/Applicants.
Mr.Satish Borulkar i/b Mr.Ulhas Naik, Advocate for Plaintiff.
-----
CORAM : K. K. TATED, J.
DATE : AUGUST 16, 2017
P.C.:
1. Heard the learned Counsel for the parties.
2. This Notice of Motion is preferred by defendant Nos.1 to 3 for
condonation of delay in filing written statement in Suit No.1790 of
2012.
3. The learned Counsel Mr.Bhavin Gada for applicants/defendant
Nos.1 to 3 submits that there is delay on the part of applicants to file
written statement. He submits that in the interest of justice, this
Court be pleased to condone the delay caused in filing written
statement. If delay is not condoned, irreparable loss would cause to
the applicants/defendant Nos.1 to 3.
::: Uploaded on - 23/08/2017 ::: Downloaded on - 28/08/2018 15:56:25 :::
This Order is modified/corrected by Speaking to Minutes Order dated 08/09/2017
psv 2 16 nms 1033-16
4. On the other hand, the learned Counsel Mr.Satish Borulkar
appearing on behalf of the plaintiff opposed the present Notice of
Motion. The learned Counsel for the plaintiff submits that as the
applicants/defendant Nos.1 to 3 failed to file their written statement
within stipulated time, the matter was supposed to be listed under the
caption for "Undefended Suit". He submits that in the meanwhile, the
suit stands dismissed for default by order dated 12 th December 2014
and thereafter they preferred Notice of Motion (L) No.223 of 2015.
He submits that this Court by order dated 10 th February 2015,
allowed the said Notice of Motion and directed the matter to be
placed under the caption "Undefended Suits". He submits that in the
present Notice of Motion, the applicants have not made any prayer to
set aside the order of undefended suit and hence, there is no question
of allowing the applicants to file their written statement by condoning
delay of 869 days. Hence, the Notice of Motion be dismissed with
costs.
5. Heard both sides at length.
6. During the course of arguments, the learned Counsel for the
plaintiff filed affidavit of service dated 8 th February 2016. Affidavit of
service shows that the amended copy of the Plaint was served on the
applicants on 2nd February 2016.
7. In the present proceeding, though earlier the matter was shown
under the caption for "Undefended Suit", thereafter as per the order
dated 6th October 2015, the plaintiff carried out amendment in the
Plaint. Thereafter the matter appeared before this Court on 17 th
::: Uploaded on - 23/08/2017 ::: Downloaded on - 28/08/2018 15:56:25 :::
This Order is modified/corrected by Speaking to Minutes Order dated 08/09/2017
psv 3 16 nms 1033-16
November 2015. At that time, at the request of plaintiff, 12 weeks
time was granted to serve the amended copy of the Plaint on the
defendants. As per affidavit of service dated 8 th February 2016,
amended copy of the Plaint was served on the applicants on 2 nd
February 2016. Thereafter they preferred the present Notice of
Motion for condonation of delay in filing written statement on 1 st
April 2016. Considering the fact that the amended copy of the Plaint
was served on the applicants on 2 nd February 2016, still there is delay
of 58 days on the part of the applicants to file their written statement.
Considering this fact and the averments made in the affidavit in
support of notice of Motion, I satisfy that applicants have made out a
case for allowing this Notice of Motion, but at the same time, they
have to pay costs of Rs.2,500/-. Costs is to be deposited to Kirtikar
Library within 4 weeks from today. Hence, the following order:-
ORDER
(i) Delay in filing written statement on the part of applicants is
condoned;
(ii) Applicants are permitted to file their written statement within
one week from today with copy to the plaintiff and other defendants;
(iii) Applicants to pay costs of Rs.2,500/-.
(iv) Costs to be deposited in the office of Kirtikar Library, within 4
weeks from today and file proof to that effect in the Registry, failing
which the Notice of Motion shall stand dismissed without taking back
to the Court.
(v) Notice of Motion stands disposed of accordingly.
(K.K.TATED, J.)
