Final Order 1

Order Details: Other
Pdf Text: 18.09.2019
SU 1414/17 @
Ch/s 1162/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Naik for plaintiff present.
Adv. Vatkar for defendant Nos.6 to 10 present.
Adv. Miss Ankita for defendant Nos.1, 3, 4 and 5 present.
Advocate for plaintiff not pressed Ch/s No.1162/2019 therefore Chamber Summons No.1162/2019
is filed and disposed of accordingly.
Plaintiff tendered original Ch/s No.1559/2019. Copy of present Chamber summons along with
affidavit is now supplied to defendant Nos.1,3,4, 5 and 6 to 10. Plaintiff is directed to server the
copy of Chamber summons upon defendant No.2.
Defendant nos.1, 3 to 5 tenderer original NM No.3153/2019. Copy is already served upon other
side. Advocate for plaintiff sought time to file reply to NM 3153/2019.
KB
LO
Order passed below Notice of Motion No.2371 of 2019
Newly added defendant Nos.6 to 10 have taken out notice of motion to condone delay caused
in filing written statement.
Perused notice of motion, affidavit in support of it and reply of plaintiff. Heard respective
counsel for parties.
Defendant Nos.6 to 10 have cited various reasons for delay caused in filing written statement
by them including that of their follow up with previous advocate for filing written statement and,
after change of their advocate it was advised that they should file counter claim and for giving
instruction and preparation of draft written statement time has been spent till last week of April,
2019. It is further contended that subsequently due to Ramzan and vacation draft written statement
could not be finalized and it was finalized only in second week of June, 2019. Accordingly, they
prayed for condoning delay.
Plaintiff opposed notice of motion on the ground that reasons assigned are false and they have
not assigned justified grounds for condoning delay.
Before dealing with draft notice of motion it is necessary to mention legal position in relation
to proviso to Order VIII Rule 1 of CPC. 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 above legal position now I consider notice of
motion.
Reasons assigned by defendant Nos.6 to 10 are sufficient to condone the delay. More so, delay
caused is not inordinate. It does not seem that these defendants want to delay the prosecution of the
suit. It cannot be said that delay caused is deliberate. In the facts of matter it is not appropriate to
refrain these defendants from contesting the matter on merits. Therefore, in the interest of justice I
am inclined to condone delay caused in filing written statement. However, considering facts of the
matter and conduct of these defendants it is necessary to impose certain costs upon them. Hence,
pass following order.
ORDER
1. Notice of Motion No.2371 of 2019 is allowed and made absolute in terms of prayer clause (a)
subject to payment of costs of Rs.3000/- (Rupees Three thousand) to plaintiff within period of one
week from the date of this order.
Defendant Nos.6 to 10 are at liberty to deposit total costs of Rs.3000/- payable to plaintiff in the
Court.
2. After payment of costs; written statement of Defendant Nos.6 to 10 be taken on record and
marked exhibit.
3. Accordingly, notice of motion is disposed off.
Matter is adjd. to 16.10.2019 for reply.
Judge
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