Final Order 1

Order Details: Other
Pdf Text: 27.01.2020
SU 2602/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Panjabi for plaintiff present.
Adv. Ranjeet Prajapati for defendant present.
He tendered draft NM t.o.r.
O Leave granted to register it.
Copy be served upon other sied.
He also annexed copy of W/S.
Say filed by advocate for plaintiff on draft notice of motion
itself.
Heard both sides.
KB
LO
Order passed below Draft notice of motion
Perused draft notice of motion, affidavit in support of it,
say filed by plaintiffs and roznama of the proceeding. Heard
respective counsel for parties.
Draft notice of motion is taken out by the defendant to
condone delay caused in filing of written statement and to take
the same on record.
It is contended by defendant that writ of summons was
served upon him on 03.12.2019 but he could not file written
statement within prescribed period of 30 days as he had been to
his native place in Uttar Pradesh to attend his ailing mother and
stayed there till 07.01.2020. Therefore, he could not give
instruction to his advocate to draft written statement and to file
the same on record. In above circumstances delay has been
caused in filing written statement. Accordingly, he made
prayers in above terms.
Plaintiffs strongly objected to the present notice of motion
by filing their say on notice of motion itself.
Before adverting to the facts I would like to mention that it
is a settled law that Order VIII Rule 1 of CPC is not mandatory
and in specific circumstances written statement 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). In view of this legal position, now, I consider notice
of motion.
In present matter defendant has approached to this Court
by taking out present notice of motion within period of 90 days
from the date of service of writ of summons. Delay caused in
filing written statement cannot be said to be inordinate. In my
view, reason assigned is sufficient to condone delay caused in
filing written statement. Further, delay caused cannot be said
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Exh.3
to be deliberate and intentional. Defendant has shown his bona
fide by annexing written statement to draft notice of motion.
Thus, it is clear that defendant does not want to hinder the
progress of the present matter. In the facts of matter in the
interest of justice and fair trial, I am inclined to allow draft
notice of motion by imposing certain costs upon him. Hence,
pass following order:
ORDER
1. Draft notice of motion is allowed and made absolute in
terms of prayer clauses (a) and (b) subject to payment of costs
of Rs.500/ (Rupees Five Hundred only) to the plaintiffs within
period of one week from the date of this Order.
Defendant is at liberty to deposit the costs payable to the
plaintiffs in the Court.
2. After payment of costs, written statement of defendant be
taken on record and marked exhibit.
3. Draft notice of motion be registered for statistical purpose.
4. Accordingly, draft notice of motion is disposed off.
…...
Defendant paid the costs of Rs.500/ to the advocate for
plaintiff who accepted it on behalf of plaintiff
Written statement of defendant. (Exh.3)
Adjourned for issues to 12.03.2020
Judge
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