Final Order 2

Order Details: Notice of Motion
Pdf Text: 21.02.2026 CORAM : H.H.J. SHRI. N. V. JIWANE (C.R. NO.62)
Sr. No.34
SU.1631/2018
NM 1367/2019
(CONTESTED
DISPOSED)
NM 1078/2026
(CONTESTED
DISPOSED)
Plaintiff in person present.
Adv. Akhlaque Solkar h/f Adv. Ahmed Khan for defendant
present.
Kept Back.
Later on at 01.20 pm
Adv. Priyanshu Mishra alongwith plaintiff present.
Adv. Akhlaque Solkar h/f Adv. Ahmed Khan alongwith defendant
present and tendered draft notice of motion alongwith affidavit in
support. O- Leave is granted to register Notice of Motion.
Reply filed by advocate for plaintiff on draft notice of motion
overleaf.
Order passed in draft notice of motion
1. Advocate for defendant has filed this draft notice of motion for
resotration of NM No. 1367/2019 which was filed for setting
aside without Written Statement order passed against defendant
on 07/12/2018. It is the contention of defendant that they had
taken out notice of motion no. 1367/2019 which was shown to
have been disposed of in the roznama dated 14/09/2023, but in
fact there was no order passed in the said notice of motion. He
submitted that on 13/07/2023 the draft notice of motion filed by
defendant for filing reply to notice of motion taken out by
plaintiff was came to be allowed subject to costs of Rs. 500/-
which was paid by defendant on that day itself. But notice of
motion no. 1367/2019 was not heard or no order was passed by
the Court. He submitted that said notice of motion was wrongly
shown as disposed of and prayed to restore the same.
2. The Ld. Advocate for plaintiff filed reply overleaf the draft
notice of motion and opposed the same on the ground of delay
and submitted that heavy costs be imposed.
3. Heard both the sides. Perused record. It is matter of record that
on 13/07/2023 defendant tendered draft notice of motion for
setting aside noreply order dated 01/04/2023 passed in Chamber
summons no. 1826/2022 taken out by plaintiff and on the same
day said draft notice of motion was allowed subject to costs of
Rs.500/-. Record further shows that on 13/07/2023 defendant
paid the costs to plaintiff and reply was taken on record. Record
further shows that when the matter was posted on 14/09/2023
for arguments on Chamber Summons, mistakenly notice of
motion no. 1367/2019 shown to have been disposed of vide
order dated 13/07/2023 and the same was removed from CIS. IN
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fact on 13/07/2023 there was no order passed in Notice of
motion no. 1367/2019 and therefore the said mistake needs to be
rectified. Hence, I pass the following order:
ORDER
1. Draft notice of motion is hereby allowed.
2. Notice of motion no. 1367/2019 is restored.
3. In the facts and circumstances of the case, no orders as to
costs.
4. Draft notice of motion be registered for statistical purpose.
5. Draft notice of motion is disposed of accordingly.
Order passed in NM no. 1367/2019
1. Defendant has filed this Notice of Motion for setting aside
without written statement order and for condoning the delay in
filing the written statement. It is the contention of defendant that
writ of summons was served on 04/06/2018 and there was order
passed by the Court rejecting the notice of motion taken out by
the plaintiff for injunction. Thereafter there were proceeding
taken before the Hon’ble HighCourt and in this Court and
defendant could not instruct his advocate to draft written
statement and file the same on record. It is contention of
defendant that valuable rights of the parties are involved in the
litigation and if the permission will not be granted to file written
statement on record by setting aside without writtenstatement
order it will cause grave prejudice to defendant. On the other
hand no prejudice would cause to plaintiff if the written
statement will be taken on record. Hence, prayed to setaside
without written statement order and to take on record written
statement.
2. Ld. Advocate for plaintiff strongly opposed the notice of
motion and submitted that there is no legal or bonafide ground
mentioned for not filing the written statement on record within
time. The defendant was well aware that the written statement
was required to be filed within stipulated period, but inspite of it
failed to file written statement on record within time. He
submitted that the notice of motion taken out by defendant is
misconceived and needs to be rejected with heavy costs.
3. Heard both the sides. Perused record. Defendant was served
with writ of summons on 04/06/2018 and put appearance in the
Court. But as the defendant failed to file written statement within
time and therefore, the court was constrained to proceed the suit
without written statement of defendant by order dated
07/12/2018. It is after passing the said order, defendant has
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Exh.11
taken out this notice of motion on 18/02/2019. There is much
delay in filing the written statement on record. To decide the
dispute between the parties on merit, an opportunity needs tobe
given to defendant to defend the suit. Admittedly there is delay in
filing the written statement on record, but the suit is in respect of
immovable property, wherein valuable rights are involved. The
delay caused in filing the written statement, plaintiff can be
compensated by imposing costs on the defendant. Hence, in the
interest of justice, I am of the considered opinion that the notice
of motion filed by defendant needs tobe allowed. Hence, i pass
the following order:
ORDER
1. Notice of motion no. 1367/2019 is hereby allowed subject to
payment of costs of Rs.5,000/- to the plaintiff.
2. After payment of costs, the written statement filed be taken on
record.
3. Notice of motion no. 1367/2019 is disposed of accordingly.
In view of the compliance, Written statement is taken on record
and marked as Exh.11. Copy of Written Statement supplied to Ld.
Advocate for plaintiff.
Matter is adjourned to 09.04.2026 for draft issues by defendant.
Later on at 02.45 pm
Adv. for defendant no. 1 tendered registered notice of motion No.
1078/2026 alongwith affidavit in support. It is already disposed
of.
Matter is adjourned to 09.04.2026 for draft issues by defendant.
Judge
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