Final Order 1

Order Details: Other
Pdf Text: 07.08.2019
SU 123/19 @
NM 1591/19
Exh.3
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. V.T.Dubey for Plaintiff present.
Adv. Jayesh Shukla for defendant present.
Say filed by Adv for Plaintiff to NM no.1591/19.
Order below NM No.1591/19.
Read Notice of motion, affidavit in support of it, reply of Plaintiff and Roznama.
Heard respective counsel for parties.
Notice of motion is taken out by the defendant to condone delay of 38 days in taking
out notice of motion and to take written statement on record.
It is contended that copy of plaint and documents were served upon defendant on
04.02.2019 and matter was adjourned for filing written statement on 03.04.2019.
However, defendant could not file written statement within prescribed period.
Defendant had tendered written statement on 03.04.2019 but it was not taken on
record and defendant was directed to take appropriate proceeding for taking written
statement on record. It is contended that written statement could not be filed within
prescribed time as Advocate on record had urgently rushed to his native place to
attend his mother who was seriously ill from 10.03.2019 and subsequently his mother
expired on 17.03.2019. It is further contended that Advocate on record returned to
Mumbai on 02.04.2019 after completion of last rites and rituals. In above background
defendant has made prayer in above terms.
Plaintiff has objected to Notice of motion.
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, I have considered present notice of motion. It is
apparent that due to non availability of Advocate on record of defendant for reasons
beyond his control, he could not file written statement within prescribed period of 30
days. It is apparent from Roznama dtd.03.04.2019 that defendant has tendered written
statement but it was not taken on record for the reason of delay caused in filing of
same. For the reason as mentioned above, the defendant cannot be made to suffer. In
my view delay caused cannot be said to be deliberate. Moreso, delay caused is not
inordinate. I am of the view that reasons assigned by the defendant is sufficient to
condone the delay and his tendering of written statement on 03.04.2019 itself shows
his bonafide. Therefore, I am inclined to allow present notice of motion. Hence, pass
following order.
ORDER
1. Notice of Motion No.1591/19 is allowed and made absolute in terms of prayer
clauses (a) and (b).
2. Written statement tendered by defendant be taken on record.
3. Accordingly, NM is disposed off.
Ex.3 Written statement filed by defendant t.o.r.
Copy of WS be served upon Plaintiff.
Adj for framing of issues to 15.10.2019.
Judge
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