Final Order 1

Order Details: Other
Pdf Text: 24.04.2019
SU 2458/18
Exh.30
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Vaishali Pandit for Plaintiff present.
Adv. Jaya Pawar for Defendant present.
Draft NM filed by Adv for Defendant t.o.r.
Leave is granted to register it.
Copy is given to other side.
Say filed by Plaintiff.
Order below draft NM.
Read Notice of motion, affidavit in support of it, reply of Plaintiff.
Heard respective counsel for parties.
Before adverting to the facts of the case, it is necessary to express legal position in relation to O-8 Rule-1
of C.P.C.
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, now I consider draft notice of motion.
Defendant has contended that writ of summons was served upon him on 01.03.2019 and he was required
to go to his native place to see his ailing uncle and from 02.04.2019 till 11.04.2019 he was not in Mumbai
and therefore, he could not meet his Advocate to finalise draft of written statement which was already
prepared. It is further contended that delay of 23 days in filing his written statement is not intentional and
deliberate. He has good case on merits.
Plaintiff opposed notice of motion.
I am of the view that reason assigned by the defendant is sufficient to accept written statement after
expiry of period of 30 days from date of service of summons. It can be said that delay caused is not
deliberate. Further delay caused is not inordinate and it cannot be said that defendant was negligent in not
filing written statement within prescribed period. Moreso, defendant has annexed written statement which
shows bonafide on his part and that he does not want to delay the prosecution of the matter.
In above circumstances, I am inclined to condone the delay caused in filing written statement and accept
written statement on record. Hence, pass following order.
ORDER
1. Draft Notice of motion is allowed and made absolute in terms of prayer clauses (a) and (b)
subject to payment of costs of Rs.500/- to the Plaintiff within period of one week. Defendant is at
liberty to deposit costs payable to Plaintiff in Court.
2. On payment of costs by the defendant, written statement filed by him be marked exhibit.
3. For statistical purposes draft NM be registered.
4. Accordingly, draft NM is disposed off.
Costs paid by defendant to Plaintiff.
Ex.30 Written statement filed by defendant t.o.r.
Adj for draft issues to 05.08.2019.
Judge
Later on at 1.30pm.
Adv. Vaishali Pandit for Plaintiff present.
Keeping in view that parties are real brothers and there are chances of settlement, so matter is referred for
mediation.
K.B.
L.O. at 3pm.
Adv. Jaya Pawar for Defendant present.
She filed registered NM No.1662/19. It is already disposed off, so it be removed from board.
Parties are directed to remain present before Mediatior on 04.06.2019.
Adj for mediation report to 05.08.2019.
Judge
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