Final Order 1

Order Details: Other
Pdf Text: 19.03.2019
SU 1371/15 @
NM 2360/15 @
NM 157/18 @
NM 803/16
Ex.3
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Andrews for Plaintiff present.
Adv. Rajesh Patel for Defendant present.
K.B.
L.O.
Ex.3 Appln. filed by Adv for Defendant for permission to sign notice of motion
t.o.r.
Considering that non signing of notice of motion no.157/18 by counsel for
Defendant is only an irregularity, permission is granted to him to put his signature
on notice of motion no. 157/18 by putting the date of today.
Accordingly, application,Ex.3 is disposed off.
Order below Notice of Motion No.157/18.
Read Notice of motion, affidavit in support of it, reply of Plaintiff to the notice of
motion and also perused R and P of present matter.
Heard respective counsel for parties. It is pertinent to note that suit proceeded
without WS vide order dtd.14.07.2017 and present notice of motion has been filed
on 24.07.2017 and on that day, leave was granted to register it and it seems to
have been registered in 2018. The defendants have assigned the reason that
Plaintiffs were proposing to settle the matter and on their request defendants have
agreed to accept their proposal provided they pay all dues with interest and for that
purposes, Plaintiffs were taking steps which resulted in believing that they will
pay all dues with interest. However, now it seems that they were only buying time.
It is further contended that written statement was ready and same was to be
affirmed by authorised signatory for filing the same on 19.07.2017. However, he
has left the services of defendant without affirming written statement which
resulted in passing the order of no written statement against the defendants.
It seems that delay caused is not deliberate and intentional. Defendants have also
shown bonafide by placing WS which they have sought to be taken on record.
It is a settled law that Order 8 Rule 1 of CPC is not mandatory and in specific
circumstances the WS can be accepted with reasons. It is also held that in an
adversarial system, no party should be denied an opportunity in participation of
the justice dispensation system (Salem Bar Association V/s Union of India (2003
AIR SCC 189) and Zolba V/s Keshav (2008 AIR SCC 2099). Keeping in view
facts of matter and legal position, I am inclined to allow notice of motion.
However, considering the period of delay, it is necessary to impose certain costs
upon the defendants. Hence, I pass following order.
ORDER
1. Notice of Motion No.157 of 2018 is allowed and made absolute in terms of
prayer clause (a) to (c) subject to payment of costs of Rs.3,000/- to the Plaintiffs
within period of one week. The defendants are at liberty to deposit costs payable
to the Plaintiffs in Court within the above period.
2. On payment of costs by the defendants, WS filed by them be marked exhibit.
Accordingly, NM No.157/18 is disposed off.
Adj for compliance to 26.03.2019.
Judge
-- 1 of 1 --