Final Order 1

Order Details: Notice of Motion
Pdf Text: Adv. Rishabh Singh for plaintiff present.
Adv. Sonam More for deft. no.1 present.
Vakalatnama filed on behalf of deft. no.1. T.O.R.
O. - Seen and filed.
ORDER BELOW N/M NO.932/20
Heard. By this N/M, deft. no.1 seeks permission to file written statement by condoning the delay.
The contention of deft. no.1 is that the writ of summons was not served upon the deft. no.1 and the
matter was never listed before the Chamber Judge or Prothonotary, Sr. Master, Hon'ble High Court
Bombay for direction for filing written statement. She would submit that High Court Original Side
Rule no.74 prescribe to file written statement within 12 weeks from service of writ of summons.
The matter was transferred to this Court and on 20.12.2012, order was passed to proceed without
written statement of the deft. The Ld. Counsel for deft. no.1 submitted that the deft. no.1 has good
case on merit and wish to bonafidely contest the suit.
Ld. counsel for plaintiffs vehemently opposed the N/M. He would submit that deft. no.1 hotly
contested the N/M before the Hon'ble High Court and had every occasion to deal with avernments
in the plaint. He further submitted that the delay is inordinate. The deft. no.1 failed to demonstrate
sufficient cause for the delay. In support of his contention, he placed reliance upon following
judgments, (1) Smt. Varhyan wd/o. Narendra Singh Chhatwal since (D) thr. LRs. V/s. Smt.
Kala wd/o. Narendra Singh Chhatwal and Ors., 2015(6) ALL MR 324 and (2) Lanka
Ventakeswarlu (Dead) by LRS. V/s. State of Andhra Pradesh and Others, (2011) 4 Supreme
Court Cases 363.
I have considered the law laid down in above cited judgments. There is no quarrel about the law
enunciated in the above cited judgments. The argument of Ld. Counsel for deft. no.1 that writ of
summons was not served and there was no occasion for this deft. to file written statement cannot be
accepted. Once the party appeared in the matter, there is no need of separate writ of summons to be
served.
The suit was dismissed on 17.01.2013 by the then Presiding Officer of this Court. After a span of
almost four and a half year, the plaintiff tendered N/M for restoration of suit which was allowed by
order dated 29.08.2019. Now, it is not open for the plaintiff to point out the conduct of deft. no.1
for delay and latches for filing the written statement. In these peculiar facts and circumstances of
the case, the law cited in the above judgments will not come to the rescue of the plaintiff. Still, in
the matter, the evidence is not yet started. Substantial rights of the parties are involved. There
should not be hyper-technical and pedantic approach in dealing with such type of N/M. This Court
is the first Court of facts and therefore, fair opportunity should be given to the parties to present
their case. No prejudice would be caused to the plaintiff if deft. no.1 is permitted to put his defence.
Rather it would be in the interest of the parties, if matter is decided on merits. In view of the above
discussion, the N/M needs consideration and it is expedient to pass the following order.
ORDER
1. N/M No.932/20 is made absolute in terms of prayer clause (a) to (c) subject to cost of
Rs.10,000/- to be paid to the plaintiff within a period of four weeks from today.
2. On payment of cost, written statement filed on record along with N/M be taken on record.
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