Date: 22-04-2019
Business: Plff and Adv absent.
Adv. Aaditya Neelkanth for Defendants present.
He tendered original NM No.1109/19 t.o.r.
Adj for NM service and reply to 21.06.2019.
Next Purpose: SERVICE
Next Hearing Date: 21-06-2019
Date: 21-06-2019
Business: Plff and Adv absent.
Adv. Aditya Nilkanth for Defendants present.
Affidavit of service filed by defendants t.o.r.
Adj for NM reply to 30.07.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 30-07-2019
Date: 30-07-2019
Business: Plaintiff no.1 present. Adv absent.
Adv. Aditya Nilkanth for defendants present.
Reply filed by Plaintiff no.1 to NM No.1109/19 and 373/19 t.o.r.
Copy is served to other side.
Adj for NM hearing to 04.09.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 04-09-2019
Date: 04-09-2019
Business: Adv. Jayesh Jain For Plaintiff present.
Adv. Aditya Neelkanth For Defendants present.
KB
L.O.
Adv. Bharat Jain for defendants present.
Heard arguments of both sides on both NMs.
Matter adjd for NM order to 05.09.2019.
Next Purpose: NM ORDERS
Next Hearing Date: 05-09-2019
Date: 05-09-2019
Business: Plff and Adv absent.
Adv. Aditya Neelkanth for defendants present.
Order below Notice of Motion No.373/19.
Read Notice of motion, affidavit in support of it, reply of plaintiffs.
Heard respective counsels for parties.
Notice of motion is taken out by defendant no.1 for condoning delay caused in filing of written statement and to take written statement on record. It is contended that issues involved in the present suit are very old i.e. about 15 years old and relevant papers were not readily available. In November 2018 papers were traced and written statement was ready and affirmed on 10.12.2018. It is further contended that defendant no.1 has an excellent case on merits and delay caused is not deliberate. Accordingly, they prayed in above terms.
Plaintiff opposed Notice of motion on the count that no cogent reason is given to condone the delay.
Admittedly writ of summons has been served upon defendant no.1 on 07.07.2018 and they failed to file written statement within prescribed period. Certainly suit relate to the allotment letter dtd.20.10.2003, so possibility cannot be ruled out that defendants spent time in tracing out papers relating to the present suit. Further, written statement on behalf of defendant no.1 has been affirmed on 10.12.2018 which indicate that they do not want to delay the trial. It is useful here to mention legal position in relation to provisions of Order 8 Rule 1 of CPC.
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, facts of the matter, I am of the view that reason assigned by defendant no.1 is sufficient to condone delay caused in filing written statement and to take the same on record. Moreso, delay caused is not deliberate and inordinate. Further, in the facts of matter, I do not think it just to refrain defendant no.1 from contesting the matter on merits by declining their prayer to take written statement on record. However, considering the conduct of defendant no.1, certain costs is required to be imposed upon them. Hence, pass following order.
ORDER
1. Notice of Motion No.373/19 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.3,000/-(Rupees Three Thousand Only) to the Plaintiffs within period of 10 days from date of order. Defendant no.1 is at liberty to deposit costs payable to the Plaintiffs in Court.
2. On payment of costs, written statement of defendant no.1 is to be taken on record and marked exhibit.
3. Accordingly, NM No.373/19 is disposed off.
Order below Notice of Motion No.1109/19.
Read Notice of motion, affidavit in support of it, reply of plaintiffs.
Heard respective counsels for parties.
Notice of motion is taken out by defendant nos.2 and 3 for condoning delay caused in filing of written statement and to take written statement on record.
It is their contention that they are not proper and necessary parties to the suit and defendant no.1 has filed written statement inter alia pointing out that suit is not maintainable against them. They were under impression that since defendant no.1 has already filed its written statement, so they need not file separate written statement. However, now they have been advised to file separate written statement and so instructions were immediately given to their Advocates to file written statement on their behalf. It is further contended that delay caused is not deliberate and false and frivolous suit has been filed against them and so, in order to hear the matter on merits, an opportunity be given to them to file written statement on record. Accordingly, they made prayers in above terms.
Plaintiff opposed Notice of motion on the count that no cogent reason is given to condone the delay.
Admittedly writ of summons has been served upon defendant nos.2 and 3 on 07.07.2018 and they failed to file written statement within prescribed period.
Written statement of defendant no.1 is yet not taken on record but they have annexed written statement which was affirmed on 10.12.2018 alongwith their notice of motion for taking same on record. So, possibility could not be ruled out that these defendants were under wrong impression that same has been taken on record and accordingly they assigned reason that defendant no.1 contended in the written statement that suit against these defendants is not maintainable. May it be so, they assigned reason for delay caused in filing of written statement is the advice of their Advocate. For the advice of Advocate, parties should not suffer. Moreso, delay caused is not deliberate and inordinate.
It is useful here to mention legal position in relation to provisions of Order 8 Rule 1 of CPC.
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, facts of the matter, I am of the view that reasons assigned by defendant nos.2 and 3 are sufficient to condone delay caused in filing written statement and to take the same on record. Further, in the facts of matter, I do not think it just to refrain defendant nos.2 and 3 from contesting the matter on merits by declining their prayer to take written statement on record. However, considering the conduct of defendant nos.2 and 3, certain costs is required to be imposed upon them. Hence, pass following order.
ORDER
1. Notice of Motion No.1109/19 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.3,000/-(Rupees Three Thousand Only) to the Plaintiffs within period of 10 days from date of order. Defendant nos.2 and 3 are at liberty to deposit costs payable to the Plaintiffs in Court.
2. On payment of costs, written statement of defendant nos.2 and 3 is to be taken on record and marked exhibit.
3. Accordingly, NM No.1109/19 is disposed off.
Adj for directions to 23.10.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 05-09-2019
