Order 1

Order Details: Notice of Motion
Pdf Text: None for plaintiff.
Adv. Mr. Pathak h/f. Adv. Mr. Rajesh Singh for deft. nos.2, 5 to 7 present.
ORDER ON N/M NO.4593/19
This N/M is tendered on behalf of deft. nos.2, 5 to 7 for taking their W/S on record. Heard
Ld. Counsel for deft. nos.2, 5 to 7. Although, the plaintiff was present but she has not argued on
this N/M and had left the court. On 04.12.2019, on the date of tendering this N/M, CA of plaintiff
orally opposed the N/M on the count that as per the direction of Hon'ble High Court, the matter is
required to be proceeded as on the stage, it was.
Ld. counsel for the deft. submitted that the Predecessor of this court has allowed the N/M
no.3464/18 and permitted deft. nos.2, 5 to 7 to file W/S. The order was passed on 02.02.2019 and
kept for compliance on 15.02.2019. On 15.02.2019, the plaintiff has filed application (Exh.46) for
stay of order and submitted that plaintiff has filed writ petition challenging the order dated
02.02.2019. Ld. Counsel for the defts. submitted that W/S be taken on record. He would submit
that the copy of W/S was tendered to CA of the plaintiff. The plaintiff has preferred writ petition
against the order dated 02.02.2019 but till date, failed to obtain any stay on the operation of order
dated 02.02.2019. He would submit that the copy of W/S was duly served to the plaintiff but the
original could not be tendered on record due to the objection of the plaintiff. Plaintiff has annexed
the copy of W/S in the writ petition which is pending before the Hon'ble High Court. He would
submit that due to constant objection of the plaintiff, the W/S could not be placed on record.
Meanwhile, defendants have changed their advocate and the brief was returned. He would submit
that in transit, the W/S dated 23.02.2019 has been misplaced. He would submit that the hearing of
the present case has been expedited by the Hon'ble High Court. These defendants wish to file the
reconstructed W/S and in the alternative, wish to file afresh W/S.
The record speaks that the copy of W/S was supplied to the plaintiff on 15.02.2019. Even, it
appears that the said copy of W/S has been annexed to the writ petition by the plaintiff. Roznama
speaks that on
15.02.2019, the CA of the plaintiff has moved an application for stay of an order dated 02.02.2019.
Again he moved an application on 01.04.2019 for stay of the suit. On 24.06.2019, the CA of
plaintiff pressed for stay of the proceeding. The matter was adjourned for compliance. On
25.09.2019, again application for stay of proceedings was filed by the plaintiff. Similar submission
was made about filing of the Writ petition by CA of plaintiff on 22.10.2019. On 21.11.2019, the
application (Exh.46 and 47) were heard and placed for order. Therefore, matter was preponed as
per direction of Hon'ble High Court for early hearing. It appears that the defendants nos.2, 4 to 6
were granted permission to file W/S by order dated 02.02.2019. It appears that they have affirmed
the W/S, the copy which is annexed with this N/M. But, the same was not tendered on the record.
It appears that the defendants were granted opportunity to contest the matter on merit. The defts.
have prepared their W/S and same could not have been filed on the record although the copy of
which was supplied to the plaintiff. In these circumstances, the contention of the defendants made
on oath that in transit or while returning the brief to the other advocate, the W/S was misplaced
appears to be acceptable which is not challenged by the plaintiff. The substantial rights of the
parties are involved and therefore, for the technicalities, parties should not be denied the
opportunity to present their case. Hence, this N/M needs consideration and it is expedient to pass
following order.
ORDER
1. N/M No.4593/2019 is made absolute and written statement affirmed on 02.12.2019 on behalf of
defendant nos.2, 5 and 6 is taken on record.
2. These defendants are further directed to supply the copy of earlier affirmed written statement.
3. N/M No.4593/2019 is disposed off accordingly.
Written statement.
I have perused the written statement. It appears that additional issues are not required to be framed.
Ld. counsel for the defendants submitted that they wish to cross examine the plaintiff and her
witness but they are not possessing the copy of affidavit in examination in chief of plaintiff and her
witness.
Plaintiff is not present. The matter is time bound. The sheristedar is directed to take out the
photocopy of the affidavit of evidence of plaintiff and her witnesses and supply it to counsel for
-- 1 of 2 --
defendants. As plaintiff is not present, issue notice to plaintiff on court motion to remain
present on 10.12.2019 along with her witness for cross examination.
The matter is adjd for cross examination to 10.12.2019.
Judge
None present.
N/M no.1892/18 is dismissed for want of prosecution.
The matter is adjd for evidence of the plaintiff to 11.02.2020.
-- 2 of 2 --