Date: 25-03-2019
Business: Adv. Rajneesh Upadhyay for Plaintiff present.
Adv. Prasad Desai for Defendant present.
Adj for NM reply and filing registered motion to 08.04.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 08-04-2019
Date: 08-04-2019
Business: Adv. Pathak for Plaintiff present.
Adv. Prasad Desai for Defendant present.
He tendered original NM No.743/19 t.o.r.
K.B.
L.O.
Say filed by Plaintiff to NM.
Order below Notice of Motion no.743/19.
Read notice of motion, affidavit in support of it, reply of Plaintiff. Heard respective counsel for parties.
Notice of motion is taken out to condone delay of 15 months caused in filing written statement.
Plaintiff opposed motion on the count that no sufficient cause is shown to condone the delay and prayed to dismissed notice of motion. It seems that defendant has attributed fault to his previous Advocates in relation to delay caused in filing written statement.
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 above legal position, I am of the view that for the fault, if any on the part of Advocate, party should not suffer. Moreso, in the interest of justice and fair trial an opportunity is to be given to the defendant to contest matter and he should not be thrown out of contest on technical ground. Therefore, I am inclined to accept reason assigned by defendant. However, considering the conduct of defendant, heavy cost is required to be saddled upon him by compensating the Plaintiff. Hence pass following order.
ORDER
1. Notice of Motion No.743 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.10,000/- to the Plaintiff within period of two weeks. Defendant is at liberty to deposit costs payable to Plaintiff in Court.
2. On payment of costs by the defendant, written statement of defendant to be taken on record.
Accordingly, NM No.743/19 is disposed off.
Adj for compliance to 10.06.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 08-04-2019
