Final Order 1

Order Details: Other
Pdf Text: Heard. This N/M inter-alia is tendered by deft. for settling aside ex-parte order dated 05.10.2018
and to allow the deft. to tender W/S.
Ld. counsel for deft. submitted that the matter was fixed on 05.10.2018. On that day, the deft. was
supposed to remain present before the J.M.F.C. Court Vasai in a criminal case filed by plaintiff
against him. Therefore, the deft. could not engage the advocate and remain present in the court.
Deft. came to know about the present advocate from one of the relatives and engaged him. The
advocate for deft. was present on 21.02.2019, however, the court was busy in final argument and the
matter came to be adjourned to 02.04.2019 and subsequently, to 27.06.2019. The deft. could not
remain present in the court for bonafide reasons and therefore, prays for setting aside ex-parte order.
The N/M is opposed by the plaintiff on the count that sufficient cause has not been made out. He
would submit that deft. could have engaged advocate who would have remained present on
05.10.2018. He submitted that advocate for plaintiff was present in this court and also in the
criminal proceeding, therefore, the reason assigned by deft. is not just and sufficient to set aside the
ex-parte order.
I had considered the rival contentions of the parties. The deft. has filed the case detail report in
respect of R.C.C. no.795/2014 in which, it appears that the matter was before the Ld. J.M.F.C.,
Vasai on 05.10.2018. The fact of date before the Ld. J.M.F.C., Vasai is also not disputed by Ld.
Counsel for plaintiff. The deft. is accused in that matter and is therefore, required to remain present
in order to avoid any coercive action against him. Therefore, it appears that deft. was prevented
from sufficient cause from attending the court on 05.10.2018. The argument of Ld. Counsel for deft.
that on 21.02.2019, counsel for deft. was present and the court was busy in final hearing matter
cannot be the ground to hold that the deft. could not take appropriate steps on that date. No doubt,
the matter is for ex-parte evidence and ex-parte evidence has not been filed.
The substantial rights of the parties are involved. Technicalities should not come in the way of the
substantial rights of the parties. The matter is at initial stage. The court cannot adopt hyper-
technical and pedantic approach in such cases. No prejudice would be caused to the plaintiff if the
matter is heard on merits. In the interest of justice, N/M needs consideration, hence it is expedient to
pass the following order.
ORDER
1. N/M No.2995/19 is made absolute in terms of prayer clause (a) and (b) subject to cost of
Rs.2,000/- to be paid by deft. to the plaintiff within four weeks from today.
2. Payment of cost is subject precedent.
3. On payment of cost, the ex-parte order stands set aside and W/S of deft. be taken on record.
4. N/M No.2995/19 is disposed off accordingly.
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