Date: 12-03-2020
Business: Advocate Uday Rane for Plaintiffs present and filed affidavit in reply of Plaintiff no.2 to Notice of Motion no.315/20, t.o.r.
Advocate for Defendant no.1 present
Advocate Mr. Tripathi for Defendant no.2 present and filed registered Notice of Motion no.315/2020 with affidavit in support, t.o.r.
ORDER ON NM NO.315/2020
This Notice of Motion is taken out by Defendant no.2 Society for setting aside exparte order dated 25/04/2019 passed against Defendant no.2 and for accepting Written Statement of Defendant no.2 by condoning the delay.
Mr. Prakash Dooa, the secretary of Defendant no.2 has filed his affidavit in support of Notice of Motion contending that writ of summons was served on Defendant no.2 on 30/01/2019 but said secretary forgot in exigency of heavy work that where he had kept the copy of plaint, therefore the subject matter of this suit was spiked from his mind. However, in the month of September 2019 while searching society papers he traced out plaint copy, thereafter inquired about suit and came to know about exparte order dated 25/04/2019, hence he has filed this Notice of Motion. It is pointed out that Plaintiff has not made any allegations against Defendant no.2 nor any relief is claimed against Defendant no.2, however Defendant no.2 is intending that in future no complications should arise in the matter and Defendant no.2 should not be required to suffer the consequences.
Plaintiff has resisted Notice of Motion by filing affidavit of reply contending that Defendant no.2 has not properly explained the reasons for condoning the delay caused in filing Written Statement and much delay more than 120 days is caused in filing Written Statement. Hence, Notice of Motion deserves to be dismissed.
Heard. It is admitted fact that Defendant no.2 is the society and office bearers of society are looking after its affairs. The secretary of Defendant no.2 has mentioned that the papers were not traceable and he forgot about the matter. It seems that Defendant no.2 has come forward even though no relief is claimed by Plaintiff against Defendant no.2, mainly because Defendant no.2 society is intending that in future no blame should be given to Defendant no.2 that it has not taken care of the matter. Considering the fact that Defendant no.2 society is a legal entity and not the person, I find that the exparte order passed against Defendant no.2 can be set aside for protecting interests of members of said society. However, Defendant no.2 should pay formal cost of Rs.500/- to Plaintiff. Hence, I proceed to pass following order-
ORDER
1. Notice of Motion no.315/2020 is made absolute in terms of prayer clause (a) and (b), subject to cost of Rs.500/- to be paid by Defendant no.2 to Plaintiff.
2. It is made clear that Written Statement of Defendant no.2 will be accepted and exhibited after compliance of today\''s order.
Advocate for Defendant no.2 paid cost of Rs.500/- to Plaintiff, hence Written Statement of Defendant no.2 which is already affidavit by secretary of Defendant no.2 on 23/09/2019 is accepted and marked as Exh.5.
Parties are directed to file draft issues on next date.
Advocates for Plaintiff and Defendant no.1 filed draft issues, t.o.r.
Advocate for Defendant no.2 submitted that draft issues are not necessary to be filed on behalf of Defendant no.2 Society as it is formal party to the suit. Considering draft issues filed by parties and pleadings issues are framed and marked as Exh.6.
Case is adjourned to 25/06/2020 for Evidence.
Nature Of Disposal: ALLOWED
Disposal Date: 12-03-2020