Final Order 1

Order Details: Other
Pdf Text: 07.08.2019
SU 312/19 @
NM 679/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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.
Earlier order to continue till next date.
Adj for mediation report to 27.09.2019.
Judge
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