Final Order 1

Order Details: Other
Pdf Text: 22.08.2019
SU 464/19
Exh.3
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Plff and Adv absent.
Adv. Renuka Kaweria for defendant no.1 present.
K.B.
L.O.
Defendant no.1 is present.
Adv. Ekta Pednekar for plaintiff present and tendered draft notice of motion TOR
O leave is granted to register the same.
Copy be served upon other side.
Adv. Renuka Kaweria for defendant No.1 present and tendered draft notice of motion –
TOR
O – leave is granted to register it.
Copy is already served upon other side.
Rely given by plaintiff on draft notice of motion itself.
Following order is passed below draft notice of motion.
Read notice of motion, affidavit in support of it, reply of plaintiff. Heard respective
counsel for both the parties.
Notice of motion is taken out by defendant no.1 to condone delay caused in filing
written statement and to take same on record. It is contended that writ of summons has
been served upon defendant no.1 in May2019 and as vacations were going on he could
not approached his Advocate during the vacations. In second week of June2019, he
approached Advocate who filed Vakalatnama on 18.06.2019 and matter was adjourned
for filing written statement to 22.08.2019. It is further contended that he has narrated
facts about the present matter to his Advocate who finalised written statement on
21.08.2019. Thus there is delay of 35 days in filing of written statement. It is further
contended that there is no negligence on the part of defendant no.1 in filing written
statement. Accordingly, defendant no.1 made prayer in above terms.
Plaintiff opposed Notice of motion on the count that delay caused is substantial. 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 position, considering reason assigned by defendant no.1
and that delay caused is not inordinate and moreso, it is not deliberate, I am of the view
to permit defendant no.1 to file written statement on record by condoning the delay
caused in filing the same in the interest of justice and fair trial. However, considering
the conduct of defendant no.1, it is necessary to impose certain costs upon him. 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.500/ to the plaintiff within period of one week. On
payment of costs, written statement of defendant no.1 is to be taken on record.
2. Draft notice of motion be registered for statistical purpose.
Accordingly, draft NM is disposed off.
Defendant no.1 has paid costs to the Adv for Plaintiff in open Court.
Ex.3 Written statement filed by defendant no.1 t.o.r.
Adjd for service and reply on NM filed by Plaintiff to 30.09.2019.
Judge
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