Final Order 1

Order Details: Other
Pdf Text: 13.11.2019
SU 1414/17
NM Nos.
2442/17,
3486/17,
4069/17,
3246/19,
3153/19,
2372/19 &
CS 1559/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Naik for plaintiff present.
Adv. Ankita for defendant Nos.1, 3, 4 & 5 present.
Adv. Bijal Shah for defendant Nos.6 to 10 present.
Defendant Nos.6 to 10 filed reply to CS No.1559 of 2019
Copy of reply to CS served upon plaintiff.
Heard both sides on NM No.3153 of 2019
KB
LO
ORDER PASSED BELOW NOTICE OF MOTION NO.3153 OF 2019
Perused notice of motion, affidavit in support of it and reply of plaintiff. Heard respective
counsel for parties.
Notice of motion is taken out by defendant Nos.1, 3, 4 and 5 for condoning the delay caused in
filing written statement.
It is the contention of defendants that writ of summons has not been served upon them. They
assigned reason that settlement talks were going on between the parties and matter was referred to
Lok Adalat for settlement and defendant Nos.6 to 10 have taken out chamber summons for adding
them as party. Because of above proceedings written statement remained to be filed by them. It is
further contended that delay caused is not intentional. They have got good defence on merits.
Therefore, they prayed in above terms.
Plaintiff opposed notice of motion on the count that no justified ground or reason shown by the
defendants to grant relief. Accordingly, they prayed for dismissal of notice of motion.
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.
On perusal of record it appears that Advocate Shamim has filed Vakalatnama on behalf of these
defendant on 02.11.2017. Since these defendants appeared so same amount to dispensing or
formality of service of writ of summons upon them. Therefore, reason of non service of writ of
summons is not of much significance for the purposes of deciding present notice of motion. No
doubt matter has been referred for mediation and also to lok adalat for settlement of dispute. But it
seems that dispute could not be settled. It is also true that newly added defendant Nos.6 to 10 have
taken out proceeding for impleading them as party defendants. More so, there are different notice of
motions have taken out and it was adjourned from time to time for different stages in relation to those
proceedings. It was never posted for filing of written statement of these defendants. Under these
circumstances possibility of these defendants for missed of filing of written statement cannot be ruled
out. It is pertinent to note that Defendant No.1 is registered Public Trust. For latches on the part of
its Trustees in taking prompt action for filing of written statement, Trust should not suffer.
Therefore, considering the facts of matter in the interest of justice and equity it is unjust to deprive
these defendants from contesting the matter on merits. Hence, I am inclined to allow present notice of
motion with certain costs and pass following order.
ORDER
1. Notice of Motion No.3153 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 plaintiff within period of
two weeks from the date of this order.
Defendant Nos.1, 3, 4 and 5 are at liberty to deposit the costs payable to plaintiff in the Court.
2. On payment of costs by these defendants their written statement be taken on record and marked
exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 16.12.2019
Judge
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