Final Order 1

Order Details: Other
Pdf Text: 27.08.2019
SU 3167/13 @
NM 3229/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Plaintiff present.
Adv. Samodhi Mane for plaintiff present.
Defendant present.
Adv. Heena Mushtaq for defendant present. She tendered original NM No.3229/2019.
Plaintiff filed reply to NM No.3229/2019.
Heard arguments of both sides.
K.B.
L.O.
Order below Notice of Motion No.3229 of 2019
Read notice of motion, affidavit in support of it, reply of plaintiff and case record. Heard respective counsel for parties.
Present notice of motion is taken out by defendant for condoning delay caused in filing written statement. It is contended that
plaintiff served copy of plaint and annexure to defendant on 4th March, 2019 but he could not file his written statement before 2nd
April, 2019 due to financial crises faced by him. Due to financial constraint he could not appoint advocate. Because of above reason
delay has been caused in filing written statement. Accordingly, defendant has made prayer in above term.
Plaintiff opposed notice of motion on the count that reason assigned is not sufficient to condone delay and delay caused is
deliberate. Defendant has already engaged advocate at the time of hearing ad-interim application. So it cannot be said that he has
engaged advocate only on 08.07.2019. There is negligence on the part of defendant in not filing written statement within prescribed
period. Accordingly, he prayed for dismissal of notice of motion.
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 above legal position now I consider present notice of motion.
At the outset I would like to mention that Adv. Heena Mushtaq along with Adv. Nargis Khan has filed vakalatnama for
defendant. It appears from roznama of few dates that Adv. Heena appeared on behalf of plaintiff. Adv. Heena submitted that she
being junior appeared on instruction by advocate for plaintiff. It is expected that once concern advocate appeared on behalf of
plaintiff then she ought to have refrained from appearing on behalf of defendant. Adv. Heena Mushtaq at this stage submitted that
she is willing to withdraw vakalatnama on behalf of defendant. Therefore, vakalatnama filed on record for defendant is treated only
of Adv. Nargis M. Khan. Hence, oral submission made by Adv. Heena Mushtaq Ahmed is not considered. At this stage, defendant
submitted that his advocate on record Nargis M. Khan appearing in short time. Therefore, I have taken pause.
Judge
Now, Adv. Nargis Khan for defendant present. I heard Adv. Nargis Khan for defendant and Adv. Samodhi Mane for plaintiff.
On perusal of roznama it appears that defendant appeared in the matter on 01.08.2015. But there is nothing on record to suggest
that plaint along with annexure were served upon defendant on the date. It is pertinent to note that suit was dismissed in default on
09.09.2014 and it was restored only on 11.08.2015. Matter was adjourned for taking steps for service of writ of summons and for
service of writ of summons upon defendant. On 09.12.2016, time was extended to serve writ of summons upon defendant.
Thereafter, matter was adjourned for service from time to time. Defendant appeared on 11.12.2017. Thereafter, matter was posted for
filing written statement. On 12.04.2018, defendant submitted that he had not received copy of plaint and plaintiff was directed to
clarify in that respect. However, he failed to clarify about the same. As per order dated 28.06.2018 my learned Predecessor directed
plaintiff to supply copy of plaint to defendant. Thereafter, matter was adjourned for supply of copy of plaint. Only on 04.03.2019,
plaintiff has served copy of plaint along with documents upon defendant. Then matter was posted for written statement. It is clear
that defendant has not filed written statement within period of 30 days from the date of service of copy of plaint and documents upon
him. Conduct of defendant shows lapses on his part. However, keeping in view chronological of events as pointed above, in the
interest of justice and fair trial I am not inclined to refrain defendant from contesting suit on merits. Therefore, I find it just to allow
notice of motion but considering the conduct of defendant it is necessary to impose certain costs upon him. Hence, pass following
order:
ORDER
1. 	Notice of Motion No.3229 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of
Rs.2000/- to plaintiff within period of one week from the date of this order.
Defendant is at liberty to deposit costs payable to plaintiff in Court.
2. On payment of costs written statement annexed along with notice of motion be taken on record.
3. Accordingly, notice of motion is disposed off.
…...
Costs paid by defendant to advocate for plaintiff.
Vakalatnama of Adv. Nargis Khan only filed along with written statement is taken on record.
Exh.3 Vakalatnama filed by Adv. Nargis Khan for defendant.
Exh.4 Written statement filed by defendant.
Copy of written statement is given to other side.
Adv. Heena Mushtaq filed pursis for withdrawal of vakalatnama on behalf of defendant.
Matter is adjourned for framing issue to 22.10.2019
Judge
-- 1 of 1 --