Final Order 1

Order Details: Notice of Motion
Pdf Text: Daily Status
IN THE COURT OF :COURT 9 ADDL SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0100159/2020
Mr. Pannalal Hiralal Betwala and Anr. Vs Smt. Kalavati Nanka Betwala and Ors.
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&amp#039s 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&amp#039s advocate. Plaintiff&amp#039s
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
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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
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