Date: 04-02-2020
Business: Advocate Mr. Dhiraj Rathode for Plaintiff present and filed reply to Notice of Motion no.159/20, t.o.r.
Advocate Sudam Patil for Defendant present and filed registered Notice of Motion no.159/2020 with affidavit in support, t.o.r.
Court is busy in dictating order on Notice of Motion in suit no.973/17 and Notice of Motions in suit no.1229/17, hence case is adjourned to 12/03/2020.
Next Purpose: NM FOR HEARING
Next Hearing Date: 12-03-2020
Date: 12-03-2020
Business: Advocate Mr. S. K. Chaurasia for Plaintiff present
Advocate Mr. Sudam Patil for Defendant present and filed additional affidavit in support of Notice of Motion, t.o.r. He also filed reply to Notice of Motion no.2293/19, t.o.r.
ORDER ON NM NO.159/20
This Notice of Motion is taken out by Defendants for condoning delay of 165 days caused in filing Written Statement on their behalf.
Defendant no.2 has filed his affidavit in support of Notice of Motion contending that on 13/09/2019 matter was referred for mediation and prior to it, Defendants received writ of summons on 27/06/2019 and meanwhile the matter was fixed for Notice of Motion hearing. It is contended that the mediation process continued till 21/10/2019 however as wife of advocate for Defendants was hospitalized, said advocate expressed his inability to attend the matter. Thereafter, Defendants approached present advocate in the month of November, 2019 and that time it was revealed that Written Statement of Defendants was not filed on record. As such, delay of 165 days caused in filing Written Statement.
Plaintiff has resisted Notice of Motion by filing his affidavit in reply contending that inspite of ample opportunities given to Defendants, they have not filed their Written Statement and they have also delayed Notice of Motion hearing on one pretext or other. It is further contended that Defendants have not filed any documents on record to show that wife of their previous lawyer was hospitalized. Further, according to Plaintiff\''s advocate, day to delay is not explained by Defendants, hence Defendants have deliberately and intentionally caused delay in filing their Written Statement, therefore Notice of Motion deserves to be dismissed.
Heard Defendants advocate as well as Plaintiff\''s advocate. Plaintiff\''s advocate has cited the case between M/s S. C. G Contracts India Private Limited V/s. K. S. Chamankar Infrastructure Pvt. Limited and Anr. reported in AIR 2019 SCC 2691. The cited case is having different facts from the facts of the case at hand, mainly because in cited case, the delay condonation for filing Written Statement was sought after rejection of application under Order 7 Rule 11 of CPC and in present case, parties were trying for settlement and the matter was referred for mediation. Further, in the case at hand as contended by Defendants, wife of their previous lawyer was hospitalized, hence said lawyer expressed inability to attend the matter. Therefore, Defendants were required to appoint present advocate. I find no reason to disbelieve Defendants about their contention in respect of hospitalization of wife of their previous lawyer mainly because, if said lawyer would have continued to represent Defendants, they would not have required to appoint present advocate. Further, no lawyer will express his inability to represent client unless there is a difficult situation as shown in this case. Hence, I find that the delay caused in filing Written Statement by Defendants was not intentional because parities were thinking for settlement. In such circumstances, I find that Defendants have shown the reasonable ground for condoning the delay caused in filing their Written Statement. Further it is always better for every Plaintiff to get the contested decree on merits else there is every possibility of remanding back the matter by Appellate Court and there is every possibility of further delay in the matter. Hence, I proceed to pass following order-
ORDER
1. Notice of Motion no.159/20 is made absolute in terms of prayer clause (a) and (b), subject to cost of Rs.5000/- to be contributed by all Defendants equally for paying it to Plaintiff.
2. It is made clear that after Defendants will comply order passed by the Court today Written Statement filed by Defendants will be accepted and will be exhibited.
Case is adjourned for Compliance to 23/04/2020.
Nature Of Disposal: ALLOWED
Disposal Date: 12-03-2020