Final Order 1

Order Details: Other
Pdf Text: IN THE COURT OF :COURT 14 ASST SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0100915/2020
Rajendra Zaverchand Mehta Vs Dhanlal Brothers
Date : 29092021
Business : Adv. Harsha Shah for plaintiff present. None
for deft. ORDER BELOW N/M NO.915/2020
Heard both sides on 24.09.2021.
Defendant’s case 2. Defendant submits that
he failed to appear on 22.08.2019 and
therefore, exparte order came to be passed.
Defendant appeared through advocate on
15.11.2019. On 12.02.2020, Court informed
defendant’s advocate regarding exparte
order passed on 22.08.2019. Prior to that,
defendant was not aware about exparte
order dated 22.08.2019. Defendant could
not contest the matter as there was wedding
of son of his elder brother in December
2019. Thereafter, he lost track of the case.
His father became ill. He was required to
attend his father and therefore, he could not
instruct his advocate for taking necessary
steps for defending the suit. Settlement talks
between the parties were going on. By
making these submissions, defendant
prayed to condone the delay in appearance
before the Court by setting aside exparte
order dated 22.08.2019. 3. Plaintiff by filing
reply affidavit strongly resisted the N/M. It
is submitted that defendant was served with
writ of summons on 18.04.2019. Plaintiff
filed service affidavit on 22.08.2019 and on
the same day, Court passed order to proceed
exparte. The reasons mentioned by
defendants for condoning the delay in
appearing before the Court are false. By
making these submissions, plaintiff prayed
to reject the N/M. 4. Ld. Counsel for
defendant submits that defendant has given
sufficient cause for his nonappearance
before the Court within stipulated period
and therefore, exparte order dated
22.08.2019 be set aside. 5. Ld. Counsel for
-- 1 of 3 --
plaintiff submits that defendant was served
with writ of summons on 18.04.2019 and he
was supposed to appear before the Court on
or before 28.04.2019. There is no
explanation in the affidavit submitted by
defendant as to what has prevented him
from appearing before the Court on or
before 28.04.2019. Therefore, the delay
caused in appearance cannot be condoned.
6. Considered the submissions advanced on
behalf of both the sides. Record shows that
writ of summons was served upon
defendant on 18.04.2019. As per Order 37
Rule 3 of C.P.C., defendant was required to
appear before the Court within 10 days of
the service of writ of summons. But,
defendant failed to appear before the Court
on or before 28.04.2019. Record further
shows that matter was posted on
06.06.2019 but plaintiff did not file service
affidavit. Thereafter, matter was adjourned
to 22.08.2019. On that day, plaintiff filed
service affidavit and order to proceed suit
exparte came to be passed. Defendant has
not given any explanation in his affidavit as
to what has prevented him from appearing
before the Court on or before 28.04.2019.
Defendant is giving explanation regarding
delay in filing N/M after passing of order
dated 22.08.2019. 7. It is pertinent to note
that defendant claims that settlement talks
were going on between the parties. Plaintiff
in its reply affidavit admits that settlement
talks were going on between the parties. 8.
As stated above, deft. failed to give
sufficient cause for his nonappearance
within stipulated period. However,
considering the fact that settlement talks
were going on between the parties and
principles of natural justice, it would be
expedient to allow defendant to enter his
appearance as per Order 37 Rule 3 of C.P.C.
However, it cannot be ignored that delay in
appearance by defendant caused delay in
-- 2 of 3 --
hearing of the suit for considerable period.
Therefore, defendant is required to be
saddled with costs. Hence, the following
order. ORDER 1. Exparte order dated
22.08.2019 is set aside and defendant is
permitted to enter his appearance as per
Order 37 Rule 3 of C.P.C. subject to
payment of costs of Rs.10,000/ payable to
plaintiff within 10 days. 2. N/M
No.915/2020 is disposed of accordingly.
Nature of
Disposal
: ALLOWED
Disposal Date : 29092021
-- 3 of 3 --