Date: 20-09-2019
Business: Adv. Neha pandey for plaintiff present.
Adv. Harsha Shah for defendant present. She tendered original NM 3273/19 on record.
KB
LO
Say filed by advocate for plaintiff on NM 3273 of 2019
Heard both sides.
Order below Notice of Motion No.3273 of 2019
Perused notice of motion, affidavit in support of it and reply of plaintiff. Heard respective counsel for parties.
Present notice of motion is taken out by defendant to condone delay caused in filing written statement and to take the same on record.
It is the contention of defendant that due to proceedings of notice of motion which he earlier taken out under Order VII Rule 11 of CPC and Appeal against the Order dated 25.03.2019 rejecting said notice of motion, he could not file written statement within period. He further contended that he has good case on merit and wants to contest the suit. Accordingly, prayed in above terms.
Plaintiff opposed notice of motion on the count that defendant has not given any explanation for the delay.
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.
It appears that on 2nd May, 2019 defendant waived service of writ of summons and matter was adjourned for filing written statement. Thereafter, there was summer vacation. Present notice of motion is taken out on 06.08.2019. Thus, it is clear that written statement has not been filed within prescribed period of limitation. However, delay caused cannot be said to be inordinate and deliberate. In the facts of matter it is not just to deny defendant from contesting the matter on merits. It is not appropriate to deny opportunity to defendant on technical ground. Therefore, in the interest of justice and fair trial I am inclined to allow notice of motion. However, considering the conduct of defendant certain costs is required to be imposed upon him. Hence, pass following order
ORDER
1. Notice of Motion No.3273 of 2019 is allowed and made absolute in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.2000/- (Rupees Two Thousand only) to plaintiffs within period of 10 days from the date of this order.
Defendant is at liberty to deposit costs payable to plaintiff in the court.
2. After payment of costs written statement of defendant be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Matter is adjourned to 11.10.2019 for direction
Nature Of Disposal: ALLOWED
Disposal Date: 20-09-2019