Final Order 1

Order Details: Other
Pdf Text: 8.01.2020
SU 2299/18
NM
3293/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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.
KB
LO
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
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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.
Judge
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