Date: 30-03-2019
Business: Plff present. Adv absent.
Deft present. Adv absent.
K.B.
L.O.
Adv. C.P.Shendvi for Plaintiff present.
Adv. Rakesh for Defendant present.
Say filed by Plaintiff on draft NM.
Order below draft NM.
Read notice of motion, affidavit in support of it, reply by Plaintiff.
Heard counsel for parties.
Notice of motion is taken out by defendant seeking condonation of delay of 81 days caused in filing of written statement. The defendant has attributed fault on the part of his previous Advocate by contending that he did not inform him about any statutory period to file written statement and by the time when he contacted another Advocate, he informed him that time for filing written statement is over. Accordingly, he prayed in above terms.
The Plaintiff has opposed notice of motion on the count that no sufficient cause has been shown by the defendants and contended that if allowed heavy costs may be imposed.
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 above legal position I consider notice of motion and reply filed to it. For the fault of Advocate, party should not suffer. Therefore, in the interest of justice and fair trial, it would not be proper to disallow defendant from contesting matter on merits. Moreso, written statement filed by defendant has been already marked as exhibit. His filing of written statement shows bonafide on his part. It cannot be said that he deliberately did not file written statement within prescribed period. In light of above discussion, I am inclined to condone delay caused in filing of written statement. However, considering the period of delay and conduct of defendant, it is just to impose certain costs upon defendant. Hence, pass following order.
ORDER
1. Draft Notice of Motion is allowed and made absolute in terms of prayer clause (a) subject to costs of Rs.2,000/- payable by defendant to Plaintiff within period of two weeks. Defendant is at liberty to deposit costs payable to Plaintiff in Court.
2. On payment of costs by defendant, written statement filed by him is to be treated as taken on record.
Accordingly, draft NM is disposed off.
For statistical purposes draft NM be registered.
Costs paid by defendant to Adv for Plaintiff.
Adj for draft issues to 24.06.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 30-03-2019
