Date: 25-07-2019
Business: Adv. Avanendra Kumar for Plaintiff present.
He tendered original NM No.2775/19 t.o.r.
Adv. Bhushan Vardhman for defendant present.
Adv for defendant sought time to file reply to NM.
Time is granted as last chance to file reply.
Adj for NM reply to 21.08.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 21-08-2019
Date: 21-08-2019
Business: Adv. Avanendra Kumar for Plaintiff present.
Adv. Rajak for defendant present.
Advocate holding over for defendant submitted that Adv on record is busy in hospitalisation. Therefore, sought adjournment.
Short adjournment is granted to file reply.
Adj for reply to 07.09.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 07-09-2019
Date: 07-09-2019
Business: Plaintiff present.
Adv. Avendra Kumar For Plaintiff present.
Adv. Girish Pawar For Defendant present.
Reply not filed by defendants therefore notice of motion is to proceed without reply against the defendant and posted for NM hearing.
Adjd for NM Hearing to 10/10/2019.
Next Purpose: NM FOR HEARING
Next Hearing Date: 10-10-2019
Date: 10-10-2019
Business: Adv. Avanendra Kumar for Plaintiff present.
Adv. Bhushan Vardhamane for defendant present.
Draft Notice of Motion filed by defendant. t.o.r
O- Leave granted to register it.
Copy is supply to the plaintiff.
Say filed by plaintiff to draft NM.
KB
LO
Same appearance.
Heard arguments of both parties.
Adjd. to 11.10.2019 for order at 1 p.m.
Next Purpose: ORDER
Next Hearing Date: 11-10-2019
Date: 11-10-2019
Business: Adv. Avnendra Kumar for plaintiff present.
Adv. Bhushan Vardhaman for defendant present.
Plaintiff present.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Perused draft notice of motion, affidavit in support of it, reply of plaintiff and roznamas. Heard respective counsel for parties.
Draft notice of motion is taken out by defendants to set aside order dated 07.09.2019 and to take their reply to notice of motion on record. It is contended that defendants could not file their reply to notice of motion due to paucity of time and being out of town for marriage function of their relatives, they could not contact their advocate and instruct him to file reply. Accordingly, they prayed in above terms.
Plaintiff opposed draft notice of motion on the count that it is not supported by any document and prayed for dismissal of notice of motion.
It appears that defendants through their advocate appeared in the matter on 17th July, 2019 and thereafter matter was adjourned from time to time for reply for their reply to notice of motion No.2775 of 2019. On 07.09.2019, notice of motion has been proceeded without reply against the defendants and it was posted for hearing on notice of motion to next date. On next date, defendants took out present draft notice of motion to set aside impugned order and to take their reply to notice of motion on record. This fact shows their bona fide. May it be so, in the interest of justice and fair trial, I am of the view not to deprive defendants from contesting notice of motion on merits. Therefore, I am inclined to allow draft notice of motion on certain costs. Hence, pass following order
ORDER
1. Draft notice of motion is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.1000/- by defendants to plaintiff within period of one week from the date of order.
Defendants are permitted to deposit costs payable to plaintiff in the Court.
2. On payment of costs reply of defendants be taken on record.
Costs paid by the defendants to plaintiff.
Defendants have to file reply to notice of motion No.2775 of 2019 within one week.
Adjd for reply to 17.10.2019
Next Purpose: REPLY
Next Hearing Date: 17-10-2019
Date: 17-10-2019
Business: By preceipy.
Adv. K.R. Tiwari for plaintiff present.
Adv. Bhushan Vardhaman for defendant present.
Defendant tendered draft Notice of motion.
O leave is granted to register it.
Copy is served upon plaintiff.
Reply filed by advocate for plaintiff on draft notice of motion.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Read draft notice of motion, affidavit in support of it, reply of plaintiff and roznamas in the proceeding. Heard respective counsel for parties.
Draft notice of motion is taken out by defendants to condone delay caused in filing written statement and to take the same on record and to treat the same as reply to notice of motion filed by plaintiff.
It is the contention of defendants that they were in search of documents for the purpose of drafting written statement and meantime, they also attended wedding function of their close relatives at native place because of which they could not give instructions to their advocate to file written statement within prescribed time. Accordingly, they prayed in above terms.
Plaintiff filed reply and opposed notice of motion and prayed to impose heavy costs upon the defendants.
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.
It is clear from the reason assigned by defendants that in collection of documents which are required for drafting written statement time has passed and so also because of their engagement in the marriage ceremony of their relative they could not give necessary instruction to their advocate to draft written statement within prescribed time. Reason assigned by them is sufficient to condone the delay caused. More so, delay caused cannot be said to be inordinate and deliberate. Further they have shown their bona fide by annexing written statement along with present notice of motion. In the facts of matter, in the interest of justice I am inclined to allow present draft notice of motion with certain costs. Hence, pass following order.
ORDER
1.Draft notice of motion is allowed and made absolute in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.1000/- (Rupees one thousand only) to the plaintiff within period of three weeks from the date of this order.
Defendants are at liberty to deposit costs payable to plaintiff in the Court.
2. After payment of costs written statement of defendants be taken on record and marked exhibit.
3. Draft notice of motion be registered for statistical purpose.
4. Accordingly, draft notice of motion is disposed off.
Costs paid by defendants to plaintiff.
Exh.3 Written statement filed by defendants TOR
In view of above order, written statement is also treated as reply to notice of motion
Adjourned for NM hearing to 14.11.2019
Next Purpose: NM FOR HEARING
Next Hearing Date: 14-11-2019
Date: 14-11-2019
Business: Adv. Tiwari for plaintiff present.
Adv. Rajak for defendant present.
She filed adjournment application Granted.
Adjourned to 5.12.2019 for hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 05-12-2019
Date: 05-12-2019
Business: Adv. K. R. Tiwari for plaintiff present.
Adv. Bhushan Vardhaman for defendant present.
Heard counsel for parties.
Adjourned for order to 13.12.2019
Next Purpose: ORDER
Next Hearing Date: 13-12-2019
Date: 13-12-2019
Business: Adv. Kunal Tiwari for plaintiff
Adv. Rajak for defendants present.
LO
FRSR following order passed below NM 2775 of 2019
Notice of Motion No.2775 of 2019 stands dismissed and disposed off accordingly.
Adjourned for issues to 12.02.2019
Nature Of Disposal: DISMISSED
Disposal Date: 13-12-2019