Final Order 1

Order Details: Other
Pdf Text: 24.01.2020
SU 960/17
NM
2448/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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 exparte 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.
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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.
Judge
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