Date: 07-08-2019
Business: Adv. Harish Pawar for Plaintiff present.
Adv. Nilesh Parab for defendant present.
He tendered original NM No.2978/19 t.o.r.
Copy of NM is supplied to the Adv for Plaintiff today.
Say filed by Plaintiff.
Order below NM No.2978/19.
Read notice of motion, affidavit in support of it, reply of Plaintiff and Roznama of present proceeding.
Heard respective counsel for parties.
Notice of motion is taken out by the defendant for condoning delay of 127 days caused in filing of written statement and to grant such further relief.
It is contended by the defendant that writ of summons was served upon him on 22.02.2019 and he could not file written statement within prescribed period as he was not aware about the statutory limit for filing of written statement. He assigned reason that he has taken time in searching for an Advocate to represent him and thereafter he engaged Advocate and given instructions to him to file written statement. Accordingly, his Advocate draft written statement which was affirmed on 20.07.2019. In above circumstances, defendant has made prayer in above terms.
Plaintiff has opposed notice of motion on the count that no just and sufficient cause is shown by the defendant for condoning delay.
It is a settled law that Order 8 Rule 1 of CPC is not mandatory and in specific circumstances the WS 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)
Keeping in view above legal principle, I have considered present notice of motion. Apparently there is lapse on part of defendant but for that reason he cannot be precluded from contesting the matter on merits.
In the facts of matter it cannot be said that delay caused is deliberate. In order to permit defendant to contest the matter on merits, I am inclined to condone delay caused in filing written statement and permit him to file written statement. However, considering the conduct of defendant, it is necessary to impose certain costs upon him. Hence, pass following order.
ORDER
1. Notice of motion No.2878/19 is allowed and made absolute in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.1,000/- to the Plaintiff within period of one week. Defendant is at liberty to deposit costs payable to the Plaintiff in Court.
2. The defendant has to file his written statement within 7 days from date of payment of costs.
3. Accordingly, NM is disposed off.
Defendant has paid costs to the Adv for Plaintiff in open Court.
Defendant has to file written statement within 7 days from today. He is at liberty to move precipe for that purpose.
There is element of settlement, so matter is referred for mediation.
Parties are directed to appear before Mediator on 28.08.2019.
Adj for mediation report to 27.09.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 07-08-2019
