Final Order 1

Order Details: Other
Pdf Text: 16.04.2019
SU 3168/18
@ NM
1408/19 @
NM 1293/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Pathak for Plaintiff present.
Adv. Surve for Defendant no.2 present.
Say filed by Plaintiff to NM 1408/19 and NM 1293/19.
Order below Notice of motion no.1408 of 2019.
Read notice of motion, say of Plaintiff.
Heard respective counsel for parties.
Defendant no.2 has taken out notice of motion seeking condonation of delay caused in filing written statement and to take written
statement on record. It is contended that writ of summons was served upon defendant no.2 on 02.01.2019. CA of defendant no.2
immediately contacted to their Advocate and prepared written statement as well as affidavit in reply to notice of motion of the
Plaintiff. It was affirmed on 01.02.2019. On the same day CA of defendant no.2 has taken out precipe for taking the matter on
board and for filing written statement but it was directed to CA to first serve notice to the Plaintiff and that come for filing written
statement. In above circumstances, defendant no.2 has made prayer in above terms. Plaintiff has opposed the notice of motion on
the count that no sufficient cause is shown to condone the delay. Accordingly, he prayed for dismissal of notice of motion.
At the outset I would like to mention legal position relating to provisions of O-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)
In view of this legal position, now I consider notice of motion. Copy of writ of summons shows that writ of summons has been
served upon defendant no.2 on 31.12.2018 while present notice of motion has been filed by defendant alongwith affidavit in
support and annexed written statement on 15.03.2019. So, there is delay of 42 days caused in filing written statement by defendant
no.2. Although defendant no.2 contended that precipe was moved on 01.02.2018 for filing written statement but Court directed
CA of defendant no.2 to first serve notice to the Plaintiff and then come for filing written statement is not supported by the
Roznama of present suit but merely on technical count defendant no.2 should not be deprieved of opportunity to contest the
matter. It is pertinent to note that annexed written statement shows that it is affirmed on 01.02.2019 which shows that there was no
intent on the part of defendant no.2 to cause delay in prosecution of matter. It cannot be said that delay caused is deliberate.
Therefore, in the interest of justice and fair trial, I am inclined to condone the delay caused in filing written statement. However,
considering the conduct of CA for defendant no.2, it is necessary to impose certain cost upon defendant no.2. Hence, pass
following order.
ORDER
1. Notice of Motion no.1408 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of
Rs.1,000/-(Rupees one thousand only) to the Plaintiff within the period of 10 days. Defendant no.2 is at liberty to deposit costs
payable to the Plaintiff in Court.
2. On payment of costs to the Plaintiff, written statement annexed to notice of motion be marked exhibit.
3. Accordingly, NM No.1408/19 is disposed off.
Order below Notice of motion no.1293 of 2019.
Read notice of motion, say of Plaintiff.
Heard counsel for Plaintiff.
Defendant no.3 has taken out notice of motion seeking condonation of delay caused in filing written statement and to take written
statement on record. It is contended that writ of summons was served upon her on 02.01.2019. Thereafter, she contacted her
Advocate and given instructions to prepare written statement as well as affidavit in reply to notice of motion of the Plaintiff. Then
she fallen ill and was unable to contact her Advocate for filing her written statement. In above circumstances, she made prayer in
above terms.
Plaintiff has opposed the notice of motion on the count that no sufficient cause is shown to condone the delay. Accordingly, he
prayed for dismissal of notice of motion.
At the outset I would like to mention legal position relating to provisions of O-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)
In view of this legal position, now I consider notice of motion. Copy of writ of summons shows that writ of summons has been
served upon defendant no.3 on 31.12.2018 while present notice of motion has been filed by her alongwith affidavit in support and
annexed written statement on 15.03.2019. So, there is delay of 42 days caused in filing written statement by defendant no.3.
Reason assigned by defendant no.3 is sufficient to condone delay. It is pertinent to note that annexed written statement shows that
it is affirmed on 15.03.2019 which shows that there was no intent on her part to cause delay in prosecution of matter. It cannot be
said that delay caused is deliberate. Therefore, in the interest of justice and fair trial, I am inclined to condone the delay caused in
filing written statement. However, in the facts of matter, it is necessary to impose certain cost upon defendant no.3. Hence, pass
following order.
ORDER
1. Notice of Motion no.1293 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of
Rs.1,000/-(Rupees one thousand only) to the Plaintiff within the period of 10 days. Defendant no.3 is at liberty to deposit costs
payable to the Plaintiff in Court.
2. On payment of costs to the Plaintiff, written statement annexed to notice of motion be marked exhibit.
3. Accordingly, NM No.1293/19 is disposed off.
Plff is directed to get registered notice of motion filed by him and thereafter to tender it on record.
Adj for compliance to 29.06.2019.
Judge
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