Final Order 1

Order Details: Other
Pdf Text: 08.04.2019
SU 1538/17
@ NM
2464/17 @
NM 743/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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.
Judge
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