Final Order 1

Order Details: Other
Pdf Text: 6.11.2019
SU 1785/18
NM 1911/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. S.V. Chaughule for plaintiff present.
Adv. Bensy Ramkrishnan for defendant present.
Say filed by the plaintiff.
Heard respective counsel for the plaintiff.
KB
LO
Order below Notice of Motion No. 1911/19.
Read Notice of Motion, Affidavit in Support of it, reply of plaintiff. Heard respective Counsel for
parties.
Notice of Motion is taken out by the defendant to condone delay caused in filing Written
Statement and to take the same on record. It is the contention of defendant that Writ of Summons
is not served upon him. He inquired with advocate for plaintiff about service of Writ of
Summons but did not receive any response. It is further contended that defendant is young college
student and if he is not permitted to file Written Statement then he will suffer great loss and no
prejudice will be caused to the plaintiff if Written Statement is taken on record. Accordingly, he
made prayer in above terms.
During the Course of argument Ld. Advocate for defendant put forth some additional ground for
consideration of present Notice of Motion. It is contended that as the proceeding of Ad-interim
relief was pending so Written Statement remained to be filed and defendant was under impression
that unless Writ of Summons is served Written Statement cannot be filed. Accordingly she prayed
for condoning the delay caused in filing Written Statement.
Plaintiff has opposed Notice of Motion on the ground that no sufficient cause is shown by the
defendant. Accordingly plaintiff prayed for rejection of Notice of Motion.
Before adverting to the facts I would like to mention that it is a settled law that Order VIII Rule 1
of CPC is not mandatory and in specific circumstances written statement 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.
In present case it appears from record that matter was referred for mediation but matter was not
settled. Thereafter my Ld. Predecessor has passed order below Notice of Motion no. 2061/18 on
15.11.2018. On the said date matter was adjourned and posted for Written Statement to
04.05.2019. On that date defendant has taken out present Notice of Motion. No doubt there is
grudges on the part of the defendant on not filing Written Statement in prescribed period but
circumstances as pointed above created impression defendant could file Written Statement by
04.05.2019. In the facts of present matter, in the interest of justice and fare trial, it is unjust to
refrain defendant from contesting the matter on merits. Therefore, I am inclined to allow present
Notice of Motion subject to payment of certain costs to plaintiff by the defendant. Hence, pass
following order :-
ORDER
1) Notice of Motion No. 1911/2019 is allowed and made absolute in terms of prayer clauses (a)
and (b) subject to payment of costs of Rs. 3000/- (Rs. Three Thousand only) to the plaintiff within
period of one week from the date of order. Defendant is at liberty to deposit costs payable to the
plaintiff in Court.
2) After payment of cost Written Statement of Defendant be taken on record and marked Exhibit.
3) Accordingly Notice of Motion No. 1911/2019 is disposed off.
................
Matter is adjourned and posted for direction to 09.12.2019.
Judge
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