Final Order 1

Order Details: Other
Pdf Text: 28.08.2019
SU 2682/17
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Aniket Chandra for Plaintiff present.
Adv. Chhabriya for Defendant present and tendered draft NM.
O Leave granted to register it.
Other side to say.
Say filed by the plaintiff.
Order below draft notice of motion.
Read draft notice of motion, affidavit in support of it and say of plaintiff. Heard
respective counsel for parties.
Defendant No.2 has taken out present draft notice of motion for condoning delay
caused in filing written statement and to permit her to file written statement.
It the contention of defendant No.2 that she was suffering from depression and
health problem due to reason that her husband defendant No.1 has left her and not
maintaining her.
Plaintiff opposed notice of motion on the count that it is barred by limitation and
if allowed then heavy costs be imposed upon defendant No.2.
It is a settled law that Order 8 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 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 I consider
present notice of motion.
It is pertinent to note that defendant No.2 has been impleaded as party as per
order dated 14th September, 2018 in Chamber Summons No.288 of 2018. Plaintiff was
directed to carry out amendment within two weeks and to supply copy of amended
plaint upon defendants within two weeks thereafter. It seems that plaintiff has carried
out amendment only on 27th June, 2019. This itself indicate that plaintiff is not
prosecuting the matter diligently. May it be so, writ of summon against defendant No.2
is dispensed with on 20th July, 2019 and she was directed to file written statement
within 30 days from that date. She approached to the Court on 22.08.2019 by moving
preceipe but she has not taken out notice of motion. Now, by present notice of motion
she has made prayers in above terms. Conduct of defendant No.2 does not appear to
delay the trial of the matter. She has also annexed written statement along with draft
notice of motion. This shows her bond fide. Delay caused is not inordinate and
deliberate. Therefore, I am inclined to condone the delay caused which is very
marginal and permit her to file written statement on record. Hence, pass following
order :
ORDER
1. Draft Notice of Motion is allowed and made absolute in term of prayer clauses (a)
and (b).
2. Written statement of defendant No.2 is hereby taken on record and it be marked
exhibit.
3. Draft notice of motion be registered for statistical purpose.
4. Accordingly, draft notice of motion is disposed off.
…..
Exh.5 Written Statement of defendant No.2
Copy of written statement is given to plaintiff.
Although defendant No.1 appeared but failed to file his written statement. Therefore,
suit to proceed without written statement against defendant No.1.
Matter is adjourned for framing of issues to 14.10.2019
Judge
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