Final Order 1

Order Details: Other
Pdf Text: 23.01.2020
SU 2768/17
NM
2494/19
NM
2149/18
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. V. N. Mishra for plaintiff present.
Adv. Bandiwadekar for defendant present.
Heard both sides.
KB
LO
Order passed below Notice of Motion No.2494 of 2019
Perused notice of motion, affidavit in support of it, reply of
plaintiff, roznama of proceeding. Heard respective counsel for
parties.
Notice of motion is taken out by the defendant Nos.1 and 2
for condoning delay caused in filing written statement and to
take the same on record.
It is the contention of defendants that writ of summons was
served upon them on 28.12.2017. They appeared in person
before the Court. Since the date of filing of the suit plaintiff
and his son through their mediator tried to settle the matter
with defendants. However, on the other hand plaintiff was
pursuing the matter before this Court in order to extract money
from them. Only few months back defendants appointed
advocate on record and after discussion it revealed that
mandatory period of filing written statement has already
elapsed. Their advocate instructed them to collect and hand
over her relevant documents in relation to the suit for the
purpose of drafting written statement. Thereafter, they started
collecting documents. Some documents were lying with
financial institutions but due to financial constrained and
change of management they could get relevant records recently.
Thereafter, they approached their advocate for drafting written
statement and after several deliberations written statement has
been finalized. More so, defendant No.2 was unable to attend
the office of Registrar for the purpose of affirmation of said
written statement as he was engaged in his work of company
where he is employed in the capacity of Senior Manager. In
above circumstances defendants have prayed in above terms.
Plaintiff opposed notice of motion by filing reply. It is
contended that delay caused is intentional, deliberate and
without any reasonable excuse. Accordingly, it is prayed that
notice of motion be dismissed.
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
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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 it is apparent that although
defendant Nos.1 and 2 appeared on 15.01.2018 but they
engaged advocate on 16.11.2018. Possibility cannot be ruled
out that because of some deliberation relating to settlement of
the matter they have not engaged advocate at the earliest. They
have also assigned reason that they could get the documents
relevant for drafting of written statement after long duration
and meanwhile defendant No.2 was not available for
affirmation due to his employment engagement. Considering
the reasons assigned in the facts of matter it is unjust to deprive
defendants from contesting the matte on merits. Therefore, in
the interest of justice and fair trial I am inclined to allow
present notice of motion subject to imposition of costs upon
them. Hence, pass following order:
ORDER
1. Notice of Motion No.2494 of 2019 is allowed and made
absolute in terms of prayer clause (a) subject to payment of
costs of Rs.5000/ (Rupees Five Thousand only) to the plaintiff
within period of two weeks from the date of this order.
Defendant Nos.1 and 2 are at liberty to deposit the costs
payable to the plaintiff in the Court.
2. After payment of costs, written statement of defendant
Nos.1 and 2 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 25.02.2020.
Judge
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