Date: 01-08-2019
Business: Adv. Vishwakarma for Plaintiff present.
Defendant present. Adv absent.
Adv for Plaintiff sought time to file reply to NM.
Time is granted.
Adj for Ch/s hearing and reply to NM 11.09.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 11-09-2019
Date: 11-09-2019
Business: Court is on leave Hence matter adjourned
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 04-10-2019
Date: 04-10-2019
Business: Adv. Dinesh Vishawakarma for Plaintiff present.
Adv. Sameer Rogade for defendant and intervenor present.
Defendant tendered original NM 2448 /19 t.o.r.
Heard argument on both side in Ch/s no 599/19.
Matter is adjourned for order on Ch/s and reply on NM 2448/19.
Adjd to 10.10.2019 for order.
Next Purpose: ORDER
Next Hearing Date: 10-10-2019
Date: 10-10-2019
Business: Adv. Vishvakarma for plaintiff present.
Adv. Devgirikar for defendant present.
F.R.S.R following order is passed below Ch/s no 599/2019
1. Chamber Summons No.599 of 2019 is allowed in following terms.
2. Plaintiff is directed to implead applicant as party defendant No.2 within period of two weeks from the date of this order.
3. After carrying out amendment in the cause title of plaint writ of summons be served upon applicant.
4. Accordingly, chamber summons is disposed of.
Advocate for plaintiff sought time to file reply to Nm
O- Time is granted as last chance.
Draft Chamber summons filed by intervenor Savita Jedi.
O- Leave granted to register it
Ex A Adv. For defendant filed vakalatnama on behalf of appplicant. t.o.r.
Adjourned for reply to 13.11.2019
Next Purpose: REPLY
Next Hearing Date: 13-11-2019
Date: 13-11-2019
Business: Plaintiff present.
Adv. Sameer Logade for defendant present.
Written statement filed by newly added defendant No.2 - TOR
Copy is served to other side.
Exh.6 Written statement.
Applicant/intervenor tendered registered CS No.1933 of 2019
Copy is given to plaintiff.
Adjourned for reply to CS and NM to 28.11.2019
Next Purpose: REPLY
Next Hearing Date: 28-11-2019
Date: 28-11-2019
Business: Adv. D.Vishwakarma for plaintiff present.
He filed reply to NM 2448/19 t.o.r.
Copy served to other side.
Adv. Sameer Loghade for defendant present.
Adv. for plaintiff sought time to file reply to Chamber summons.
O- Time is granted.
Adjourned for NM hearing to 7.12.2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 07-12-2019
Date: 07-12-2019
Business: Adv. Vishwakarma for plaintiff present.
Adv. Sameer Logade for defendant present.
Plaintiff present and filed reply to chamber summons No.1933 of 2019.
Copy is given to other side.
Heard both sides on chamber summons No.1933 of 2019.
Adjourned for order to 16.12.2019
Next Purpose: NM FOR HEARING
Next Hearing Date: 16-12-2019
Date: 16-12-2019
Business: Adv. Vishwakarma for plaintiff present.
Adv. Sameer Logade for defendant present.
He filed rejoinder to reply filed by the plaintiff
Copy given to the plaintiff.
KB
LO
Adv. D\''silva for plaintiff present.
Adv. Deogirikar for applicant present.
FRSR FOLLOWING ORDER PASSED BELLOW CH/S 1933 OF 2019
1 Chamber Summons No.1933 of 2019 is allowed in following terms
Plaintiff is directed to implead applicant as party defendant No.3 within period of two weeks from the date of this order.
2.After carrying out amendment in cause title of the plaint, writ of summons be served upon newly added defendant.
3.Plaintiff is at liberty to take out appropriate proceeding for consequential amendment in body of plaint in view of addition of parties.
4.Accordingly, chamber summons is disposed off.
Adjourned to 23.01.2020 for compliance.
Next Purpose: COMPLIANCE
Next Hearing Date: 23-01-2020
Date: 23-01-2020
Business: Adv. D\''Silava for plaintiff
Adv. Logade for defendant present.
Adv. for Plaintiff sought extension of time to carry out amendment as per order dated 16.12.2019 passed in CH/s No. 1933/19.
O- Time is extended by two weeks from today to carry out amendment.
Heard counsel for both side in NM No. 2448/19
Adjourned for NM order to 24.01.2020
Next Purpose: NM ORDERS
Next Hearing Date: 24-01-2020
Date: 24-01-2020
Business: Adv. Vishwakarma for plaintiff present.
KB
LO
Following order is passed below Notice of Motion No.2448/2019
Perused notice of motion, affidavit in support of it, reply of plaintiff, rejoinder of defendant No.1 and roznama of proceeding. Heard respective counsel for parties.
Notice of motion is taken out by defendant No.1 (original defendant) to set aside order dated 23.01.2018 of proceeding suit ex-parte against him, permit him to file written statement on record and condone delay if any caused in filing present notice of motion.
It is the contention of defendant No.1 that he along with his family continuously stayed out of India for his service purpose and did not receive suit summons of this Court. It appears that bailiff might have pasted summons on the door of his room when it was closed. On 1st March, 2019 landlord of suit premises Mr. Nelson Domnic D\''Souza informed him about the pendency of suit while he was at Riyadh. Thereafter, he has obtained leave from his employer and came to India on 22.06.2019. Accordingly, he made prayer in above terms.
Plaintiff filed reply to the notice of motion and opposed it on the count that defendant No.1 has not filed any document in support of his claim and affidavit of Nelson D\''Souza. Accordingly, he prayed for dismissal of notice of motion.
Defendant No.1 filed rejoinder to the reply of plaintiff and reiterated the contents of affidavit in support of notice of motion. Accordingly, prayed for allowing 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.
On perusal of roznama dated 08.09.2017 it is clear that writ of summons could not be served upon defendant No.1 as he had gone out of India. Plaintiff has applied for substituted service of writ of summons upon defendant No.1 which was allowed and after filing affidavit of service suit proceeded exparte against defendant No.1 vide order dated 23.01.2018. Possibility of defendant being not aware of the proceeding as he was out of India at the relevant time cannot be ruled out. So it can be said that because of sufficient cause he was prevented from attending the Court on 23.01.2018. Defendant No.1 on oath stated that he came to know about the proceeding through his landlord and after he got leave from his employer he came to India and took out present notice of motion.
Aforesaid reason in my view is sufficient to condone the delay caused in taking present notice of motion. In the facts of matter for advancing substantial justice and to give an opportunity to defendant No.1 to contest the matter on merits I am inclined to allow present notice of motion by imposing certain costs upon defendant No.1. Hence, pass following order
ORDER
1.Notice of Motion No.2448 of 2019 is allowed and made absolute in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.3000/- (Rupees Three Thousand only) to the plaintiff within period of two weeks from the date of this order. Defendant No.1 is at liberty to deposit the costs payable to the plaintiff in the Court.
2.After payment of costs, written statement of defendant No.1 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 17.02.2020.
Nature Of Disposal: ALLOWED
Disposal Date: 24-01-2020
