Date: 20-09-2019
Business: Plaintiff present.
None for defendant.
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LO
Plaintiff present
None present on behalf of defendant.
Registered notice of motion is not filed on record. Defendant is directed to file original registered notice of motion on record and to supply copy of the same to plaintiff.
Adjourned for direction to 11.10.2019
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 11-10-2019
Date: 11-10-2019
Business: As P.O. is proceeded to Nashik to attend Regional Conference,
board discharge and adjd. to 13.11.2019
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 13-11-2019
Date: 13-11-2019
Business: Adv. D.A. Barot for plaintiff present.
Adv. Bhojaraj Barat for defendant present.
He tendered registered NM 3298/19.t.o.r.
Copy given to other side.
Adjourned for reply to 30.11.2019
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 30-11-2019
Date: 30-11-2019
Business: Adv. Barot for plaintiff present.
Defendant absent.
Adv. for plaintiff filed reply to NM 3293/19. t.o.r.
Copy be served upon defendant.
Adjourned to 8.01.2020 for service and reply.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 08-01-2020
Date: 08-01-2020
Business: Adv. Barot for plaintiff present.
Adv. Bhojaraj for defendant present.
Copy of reply is served upon defendants.
Copy given to other
Heard learned counsel for both sides on NM No.3293 of 2019.
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Order passed below Notice of Motion No.3293 of 2019
Perused notice of motion, affidavit in support of it, reply of plaintiff and roznamas in the present suit. Heard respective counsel for parties.
Notice of motion is taken out by the defendants for condonation of delay caused in filing written statement and to take the same on record.
It is the contention of defendants that since the matter was under mediation, the defendants being in process of reconciliation did not file their written statement thinking that dispute will be settled amicably. However, mediation has failed and now, defendants want to file their written statement. It is imperative on the part of defendants to bring the correct facts on record and contest the present suit. Accordingly, they made prayer in above terms.
Plaintiff opposed notice of motion by filing his reply. It is contended that no sufficient cause is shown by the defendants for condonation of delay. On 5th July, 2019 when notice of motion was argued, defendants were aware that they have to file written statement as matter was not settled. So, no case is made out by the defendants for condoning the delay caused in filing written statement. Accordingly, he 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.
It is true that, suit has been referred for mediation and mediation failed. It is also true that plaintiff is husband of defendant No.1, and defendant Nos.2 and 3 are sons born out of said wedlock. Considering the relation between the parties possibility of continued efforts for conciliation between them cannot be ruled out. But, when Notice of Motion No.3421 of 2018 has been contested on merits by the parties then defendants ought to have taken out appropriate proceedings for taking their written statement on record. May it be so, they have taken out present notice of motion after dismissal of notice of motion No.3421 of 2018 filed by plaintiff. Keeping in view facts of the matter it is not appropriate to deprive defendants from contesting the matter on merits. Therefore, in the interest of justice and fair trial I am inclined to allow present notice of motion subject to imposition of certain costs. Hence, pass following order.
ORDER
1. Notice of Motion No.3293 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.3000/- (Rupees Three Thousand only) to plaintiff within period of two weeks from the date of this order.
Defendants are at liberty to deposit costs payable to plaintiff in the Court.
2. On payment of costs, written statement of defendants be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 01.02.2020.
Nature Of Disposal: ALLOWED
Disposal Date: 08-01-2020